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70f9428b-eab7-43e1-a80d-bf40fd08c0a8 | Tidwell v. Winn-Dixie, Inc. | 502 So. 2d 747 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 747 (1987)
Betty TIDWELL
v.
WINN-DIXIE, INC.
85-1353.
Supreme Court of Alabama.
January 30, 1987.
John H. England, Jr., of England & Bivens, Tuscaloosa, for appellant.
James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
BEATTY, Justice.
This is an appeal by plaintiff, Betty Tidwell, from a judgment for defendant, Winn-Dixie, Inc., in plaintiff's action based upon malicious prosecution and defamation. We affirm.
The action arose out of an incident at a Winn-Dixie grocery store. Plaintiff's husband had appealed a workmen's compensation claim against Winn-Dixie. Plaintiff discovered that her husband's appeal had been dismissed. Plaintiff became upset and went to the grocery store where her husband had worked. When she arrived, she telephoned a local television station and requested that it send someone to the store, "because there might be some trouble" and also because she wanted to publicize how unfair Winn-Dixie had been to her husband.
Following this telephone call, plaintiff selected a shopping cart and proceeded to fill it with groceries. As she did this, she spoke to several customers, telling them "that justice was not made and that how unfair Winn-Dixie had been." She then took the filled grocery cart and, instead of *748 going through the checkout stand, took the cart around it. At that point, the assistant store manager came out of his office and told her that she would have to pay for the groceries. She replied that she did not have the money for them. (Actually, she had $200 in her bank account and a bank check in her possession.) She stated that she would "sign a ticket and you can deduct that from what you owe my husband, you owe him a lot more than what you pay him." The assistant manager replied that the company could not do that.
The assistant store manager telephoned the police and, a short time later, a patrolman arrived. Mrs. Tidwell was arrested and taken to jail. A warrant for her arrest was issued shortly thereafter. She was bound over for grand jury action, indicted, and convicted of disturbing the peace. Her sentence of thirty days in jail was suspended for two years.
Subsequently, Mrs. Tidwell brought this action for malicious prosecution and defamation by slander. At the close of plaintiff's evidence at the trial, the court granted defendant's motion for a directed verdict as to both counts and entered judgment for the defendant. This appeal ensued.
Plaintiff concedes the correctness of the trial court's order granting the motion against the malicious prosecution count; hence, this Court does not address that issue. However, plaintiff insists that a scintilla of evidence was presented on the elements of slander which should have prevented a directed verdict on that count.
The plaintiff argues that the statement made by the assistant manager of the Winn-Dixie store to the arresting officer, i.e., "that she had passed the register and she did not pay for the groceries that she had," was defamatory and actionable. We disagree.
Mrs. Tidwell herself testified that she did not pay for the groceries. The statement in issue, therefore, was not falseit was true. The first element of a cause of action in defamation is a false statement. Mead Corp. v. Hicks, 448 So. 2d 308 (Ala.1983).
Moreover, the store manager's statement to the police officer could have been found to be within his conditional privilege. This Court discussed the scope of the conditional privilege in Fulton v. Advertiser Co., 388 So. 2d 533, 537 (Ala. 1980):
Considering the circumstances existing at the time the statement was made, the trial court could have, indeed, must have, found it conditionally privileged, calling then for proof by plaintiff of actual malice on the part of the store manager. Willis, supra. But, there was a complete absence of any such proof. The manager uttered no abusive or violent language, nor did the evidence disclose that he either entertained or demonstrated any ill will or animosity toward her. Consequently, there was no proof whatever of actual malice.
For these reasons, we conclude that the trial court was not in error in granting the *749 defendant's motion for a directed verdict against the defamation count.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | January 30, 1987 |
719061f9-1aa7-4ab6-a791-40564465beb9 | Edmonson v. Colwell | 504 So. 2d 235 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 235 (1987)
Charles D. EDMONSON
v.
Jerry F. COLWELL, etc., et al.
Herbert D. ANDERSON, et al.
v.
Martha T. KIRKLAND, et al.
85-606, 85-607.
Supreme Court of Alabama.
January 30, 1987.
Rehearing Denied March 20, 1987.
James E. Hart, Jr. and Edward T. Hines of Garretts, Thompson & Hines in case 85-606, Brewton, Norton W. Brooker, Jr. of Lyons, Pipes & Cook and Edward B. McDonough, Jr., of McDonough & Broome in Case 85-607, Mobile, for appellants.
Hugh M. Caffey, Jr. of Caffey & Byrd, Brewton, for all appellees in case 85-606 and for Horton appellees in case 85-607.
Reo Kirkland, Jr., Brewton, for Kirkland appellees in case 85-607.
HOUSTON, Justice.
Two cases were consolidated for trial. A summary judgment was entered for the plaintiffs in the case of Martha T. Kirkland, et al. v. G.I. Drury, et al. and was made final under Rule 54(b), Ala.R.Civ.P.; and a summary judgment was entered for the defendant in the case of Charles D. Edmonson v. Jerry F. Colwell, et al. The losing parties in each case appealed and the appeals were consolidated.
The following are all of the pertinent facts insofar as the issues raised by these appeals are concerned. Charles D. Edmonson acquired an undivided interest in certain minerals (title to which was severed from the surface title) in property in Escambia County, Alabama, in 1946. In 1946, *236 Edmonson conveyed a portion of his undivided interest in these minerals to Drury.
On June 3, 1954, Edmonson's interest in these minerals was sold for nonpayment of ad valorem taxes. This interest was purchased by the State of Alabama. The State sold this interest to appellee Jerry F. Colwell on October 6, 1971.
Edmonson commenced this action by filing a petition for redemption against the owners of the Colwell interest (hereinafter "the Colwell group") on December 2, 1983, in which Edmonson sought to have the tax deed from the State Land Commissioner of Alabama to Colwell declared void. The Colwell group answered and filed a counterclaim which denied the allegations of the complaint and set up the affirmative defenses of repose, laches, and the statute of limitations. The counterclaim was amended to state a claim under the Grove Act, § 6-6-560, Code 1975.
On June 2, 1955, Drury's interest was sold for ad valorem taxes. This interest was purchased by the State. In 1968, the State sold its interest to Earl Horton, who sold half of his interest to his father and mother, Escambia County Tax Collector W.H. Horton and Alice A. Horton, and half to Escambia County Probate Judge Reo Kirkland and his wife Martha T. Kirkland (hereinafter "the Horton/Kirkland group").
On January 24, 1984, the Horton/Kirkland group filed an action under the Grove Act against the owners of the Drury interest.
These suits were consolidated because of common questions of law and fact.
Motions for summary judgment were filed by the Horton/Kirkland group and the Colwell group. The trial court found that the Horton/Kirkland group and the Colwell group were entitled to judgments as a matter of law under the Grove Act; that the Edmonson group and the Drury group were barred from redeeming from the tax sales, which had occurred more than 20 years before they sought to redeem.
There has been no development of the mineral rights either through mining or drilling. Consequently, none of the parties is in actual possession of the minerals.
Justice Maddox, writing for a division of this Court in Shelton v. Wright, 439 So. 2d 55, 57 (Ala.1983), wrote:
In Fitts v. Alexander, 277 Ala. 372, 375, 170 So. 2d 808, 810 (1965), this Court held that an action to quiet title under the Grove Act could be brought when (1) neither the plaintiff nor any other person is in the actual possession of the interest claimed in the land; (2) the plaintiff and those through whom he claims have held color of title to the interest claimed in the land for a period of ten or more consecutive years next preceding the filing of the complaint; and (3) the plaintiff or those through whom he claims have paid taxes on the interest claimed during the whole of such period or for a period of ten or more consecutive years next preceding the filing of the complaint.
Even if the appellants are correct in their challenge to the validity of the tax deeds through which the Horton/Kirkland group and the Colwell group claim, these tax deeds are color of title. Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962). Any instrument purporting to convey an interest in land may be color of title, however defective or imperfect it is, and no matter from what cause it is invalid, Van Meter v. Grice, 380 So. 2d 274 (Ala.1980). Therefore, the Horton/Kirkland group and the Colwell group had color of title to the mineral interest which each had claimed for more than ten consecutive years before these suits were filed.
The ad valorem tax burden has been exclusively borne by the Horton/Kirkland *237 and Colwell groups since the original tax sales. All accrued ad valorem taxes were paid on the respective mineral interests by the Horton/Kirkland group and the Colwell group at the time these interests were purchased from the State. Both groups made a one-time payment "in lieu of" ad valorem tax payments, in accordance with § 40-20-35, Code 1975, to the Probate Judge of Escambia County.
Section 40-20-31, Code 1975, levies a mineral documentary tax upon the filing and recording of an instrument conveying a severed mineral interest. Section 40-20-32(3), Code 1975, provides that the tax shall be $.15 per mineral acre if the primary term of the instrument extends for more than 20 years. Section 40-20-45 provides that this tax shall be in lieu of all ad valorem taxes.
Though the Grove Act is purely statutory and strict compliance with the requirements set forth in it is imperative, payment of a mineral documentary tax in accordance with §§ 40-20-30 through 40-20-37, Code 1975, on a severed mineral interest is sufficient compliance with the ad valorem tax requirement; this principle is consistent with this Court's holding in Shelton v. Wright, supra, that the Grove Act can be used to clear title to severed mineral interests. Otherwise, if an owner of minerals paid the mineral documentary tax, as he is required to do to record his mineral deed, and is thereby relieved of any obligation to pay additional taxes, he could not clear title under the Grove Act.
Edmonson and Drury have attempted to retroactively pay ad valorem taxes. This does not negate the "exclusivity" of tax payment by the Kirkland/Horton and the Colwell groups for a period of more than ten years next preceding the filing of the complaints. Shelton v. Wright, supra.
Edmonson sought to redeem this severed mineral interest 29 years after the tax sale and 12 years after the State, which purchased the interest at the 1954 tax sale, sold this interest to Colwell.
Drury sought to redeem this severed mineral interest 28 years after the tax sale and 17 years after the State, which purchased the interest at the 1955 tax sale, sold this interest to Horton.
Edmonson and Drury contend that they are entitled to redeem without limit as to time, under the conditions and purview of § 40-10-83, Code 1975.
We have stated many times that the purpose of § 40-10-83 is to preserve the right of redemption without a time limit, if the owner of the land seeking to redeem has retained possession. Stallworth v. First National Bank of Mobile, 432 So. 2d 1222 (Ala.1983); Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So. 2d 411 (1943). However, when the rule of repose or prescription has been raised in the pleadings (as it was in the instant case), we have stated:
Schwab v. Nonidez, 276 Ala. 308, 310-11, 161 So. 2d 592 (1964).
The record conclusively establishes that the appellants did not attempt to redeem the mineral interests for more than 20 years. Therefore, the trial court did not err in barring the appellants' right to redeem *238 under the rule of repose. Boshell v. Keith, 418 So. 2d 89 (Ala.1982).
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | January 30, 1987 |
335c4249-b11e-4fac-aa35-0de5b3685a8c | First Nat. Bank of Mobile v. Duckworth | 502 So. 2d 709 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 709 (1987)
FIRST NATIONAL BANK OF MOBILE, as Trustee under the will of Lua G. Gallalee, deceased; et al.
v.
Joe B. DUCKWORTH and Everett Hale as trustees of the Professional Center Trust.
84-1363.
Supreme Court of Alabama.
January 30, 1987.
Robert P. Denniston and Caroline Wells Hinds of Brown, Hudgens, Richardson, Mobile, for appellants.
J. Sydney Cook III of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellees.
PER CURIAM.
The First National Bank of Mobile, as Trustee under the will of Lua G. Gallalee, deceased, together with Mrs. Lua Gallalee's son Jack C. Gallalee and daughter Lua G. Martin, as owners of the fee simple title to certain real property on University Boulevard in Tuscaloosa, entered into a 51-year ground lease, dated May 10, 1963, to Ward McFarland, Inc. The plaintiffs in this litigation, Joe B. Duckworth and Everett Hale, as trustees of the Professional Center Trust, succeeded to the interest of the original lessee. The original lessors are parties defendant to this litigation, except that the Bank and Jeppie A. Gallalee, the widow of Jack C. Gallalee, are successors in interest to Mr. Gallalee.
The plaintiffs filed a declaratory judgment action seeking construction of the lease, specifically the method of determining the rent for the 5-year period beginning on May 15, 1983, and for the later rental periods stated in the lease.
Rental payments after the first 20 years of the lease are based upon the following clause in the lease:
Paragraph 9 of the lease provides for the selection of an appraiser and for rent to be a stated percentage of the value of the leased premises as determined by the appraisal. Paragraph 9 reads as follows:
The parties stipulated to the following facts:
Since the beginning of the 21st year, all lease payments of $2,310 per month were paid by the plaintiffs under protest.
The case was tried without a jury on a stipulation of facts, certain testimony, and exhibits. The trial court entered a judgment in favor of the plaintiffs. The court found that the term "value of the leased premises" was ambiguous and subject to more than one interpretation. The trial court ordered the defendant lessees to employ an appraiser to determine the value of the leased premises taking into consideration the effect of the lease agreement itself. We reverse.
When evidence is presented to a trial court sitting without a jury, the general rule is that its findings will be presumed correct and will not be disturbed on appeal in the absence of plain and palpable error. However, if the evidence before the trial court is undisputed, as in the present case, this Court must consider the evidence de novo, indulging no presumptions in favor of the trial court's findings. Sasser v. Spartan Foods Systems, Inc., 452 So. 2d 475 (Ala.1984).
We agree with the trial court's determination that the lease is ambiguous as to whether the existence of the lease itself is to be considered in arriving at the "value of the leased premises." The lease agreement provides no guidance regarding the method of appraisal to be used, and it does not specifically define the term "leased premises."
An ambiguous contract is to be construed according to the intention of the parties thereto, which is to be gathered from the contract as a whole and by examining the actions of the parties and the *711 subject matter of the contract. Gulf Fishing & Boating Club, Inc. v. Bender, 370 So. 2d 1026 (Ala.Civ.App.1979).
The parties in this case stipulated that none of the original contracting parties to the lease was available to testify as to the meaning of the term "leased premises." The only relevant acts of the parties subsequent to the execution of the lease is the employment of an appraiser pursuant to paragraph 9 of the lease and the disagreement as to whether the existence of the lease should have been considered by the appraiser.
Alabama law does not specifically address whether the existence of the lease itself should be included as a factor in determining the "value of the leased premises." However, case law from other jurisdictions supports the contention that the lease itself should not be considered.
In Springer v. Borden, 210 Ill. 518, 71 N.E. 345 (1904), the Supreme Court of Illinois was faced with the task of interpreting a ground lease which provided that the amount of rent for a term of years should be equal to five percent (5%) of the "cash value of the demised premises, exclusive of the buildings and improvements which might be thereon." According to the evidence in Springer, there was a building on the premises and 20 years remained under the lease. Despite the plaintiff's contention that the existence of the lease depreciated the value of the fee and restricted the use to which the property could be devoted, the court held that all evidence as to the effect of the lease on the value of the premises was immaterial and incompetent, and that the valuation of the leased premises should be made without considering any effect of the lease on the value of the premises.
The holding of Springer v. Borden, supra, was upheld in Giddens v. Board of Education of the City of Chicago, 398 Ill. 157, 75 N.E.2d 286 (1947). The Illinois Supreme Court interpreted the following lease language:
Giddens, 398 Ill. at 160, 75 N.E.2d at 288.
The court held that "cash value" meant "the fair cash market value of the naked lot, with a clear title in fee simple, and without the appreciation or depreciation which the existence of a lease might have upon the value." Giddens, 398 Ill. at 171, 75 N.E.2d at 293.
In Bullock's, Inc. v. Security-First National Bank of Los Angeles, 160 Cal. App. 2d 277, 325 P.2d 185 (1958), the court held that where a lease provided for rent in an "amount equal to 5 percent of the appraised value of the leased land" exclusive of buildings and improvements thereon, the fair market value of the property rather than its rental value for any given time was the proper measure of rent owed to the lessor.
Bullock's, 160 Cal. App. 2d at 286-87, 325 P.2d at 191.
*712 The most recent case on this issue is Olympia & York 2 Broadway Co. v. Produce Exchange Realty Trust, 93 A.D.2d 465, 462 N.Y.S.2d 456 (1983), which held that where a lease specifically provided for a determination of rent based upon appraised value of land as though it were vacant and unimproved, the rental value would be determined without taking into account existing structures, encumbrances, and leases. The rent in Olympia was a sum equal to five percent (5%) of the value of the land, as determined by appraisal, the land to be considered as "vacant and unimproved." In construing the term "vacant and unimproved," the court held that the parties manifested a clear intention that existing structures, encumbrances, and leases were not to be taken into account in determining the rental value.
The language of the lease in the present case is similar to the language of the lease in Olympia. The subject lease states that buildings and other improvements, except for paved streets, drainage, and other non-building improvements, are not to be considered. In addition, at the time the present lease was originally negotiated, there was not a lease in effect and there were no buildings on the property. It is, therefore, logical to conclude that the parties to this lease were bargaining with respect to unencumbered and unimproved land, and anticipated that the appraiser would base his valuation 20 years later upon the same premise, i.e., unencumbered and unimproved property.
Based upon sound reasoning from other jurisdictions and the logical intentions of the parties, we hold that the existence of the lease itself should not be considered in determining the value of the leased premises. Accordingly, the judgment of the trial court is reversed, and a judgment is hereby rendered declaring the proper construction of the lease term "value of the leased premises."
REVERSED AND JUDGMENT RENDERED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | January 30, 1987 |
a98be37b-cf8b-44f9-ac01-492deb3474f0 | Ex Parte Clisby | 501 So. 2d 483 | N/A | Alabama | Alabama Supreme Court | 501 So. 2d 483 (1986)
Ex parte Willie CLISBY, Jr.
(Re Willie Clisby, Jr. v. State).
85-434.
Supreme Court of Alabama.
December 12, 1986.
Rehearing Denied January 23, 1987.
Dissenting Opinion January 30, 1987.
*484 Cathy S. Wright, Tony G. Miller, and Deborah J. Long of Maynard, Cooper, Frierson & Gale, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
We granted certiorari to determine whether Willie Clisby, Jr., is entitled to an evidentiary hearing in the trial court on his petition for a writ of error coram nobis. The Court of Criminal Appeals upheld the judgment of the trial court, which dismissed the petition without an evidentiary hearing. Clisby v. State, 501 So. 2d 480 (Ala.Crim.App.1985). We affirm.
Clisby filed a petition for a writ of error coram nobis in the Circuit Court of Jefferson County, seeking to set aside his initial conviction and death sentence. For a history of this case, see Clisby v. State, 456 So. 2d 86 (Ala.Crim.App.1982), as ultimately affirmed, Ex parte Clisby, 456 So. 2d 105 (Ala.1984), cert. denied, 470 U.S. 1009, 105 S. Ct. 1372, 84 L. Ed. 2d 391 (1985). We have carefully examined the petition, as well as the state's response in opposition to it. All but one of the issues raised in the petition are not cognizable in a coram nobis proceeding, because they were either dealt with on direct appeal or could have been raised at trial or on direct appeal and were not. It is not the office of a writ of error coram nobis to serve as a substitute for an appeal. Ex parte Ellison, 410 So. 2d 130 (Ala.1982).
The one issue raised in the petition which is cognizable in a coram nobis proceeding is Clisby's claim of ineffective assistance of counsel. Ex parte Boatwright, 471 So. 2d 1257 (Ala.1985); Ex parte Poole, 485 So. 2d 1087 (Ala.1986). That claim appears in the petition as follows:
Relying on Ex parte Boatwright, supra, Clisby maintains that he is entitled to an evidentiary hearing on his allegations of ineffective assistance of counsel. We disagree.
In Boatwright, the Court stated:
The Court in Boatwright recognized and applied the well established rule that a petition for a writ of error coram nobis must contain more than mere naked allegations that a constitutional right has been *486 denied. Thomas v. State, 274 Ala. 531, 150 So. 2d 387 (1963).
A petition for a writ of error coram nobis is "meritorious on its face" only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts), Thomas v. State, supra; Ex parte Phillips, 276 Ala. 282, 161 So. 2d 485 (1964); Stephens v. State, 420 So. 2d 826 (Ala.Crim.App.1982), sufficient to show that the petitioner is entitled to relief if those facts are true.
In Boatwright, the petitioner stated three separate grounds for relief, all of which concerned ineffective assistance of counsel: (1) that he was denied the effective assistance of counsel in violation of Article I, § 6, of the Alabama Constitution of 1901, and the Sixth and Fourteenth Amendments to the United States Constitution; (2) that his trial counsel had a conflict of interest in the case and did not fairly represent him, so that he was denied a fair trial; and (3) that his waiver of a jury trial was not knowingly, intelligently, and voluntarily made, because he lacked competent assistance of counsel and because he was unaware of the consequences of his stipulation to the admission of marijuana into evidence. In support of these grounds, Boatwright stated that his trial counsel failed to appear at certain hearings, waived a jury trial, and stipulated to the admission of marijuana into evidence. He also stated that his trial counsel was representing another defendant on a drug charge at the same time, and that his trial counsel made statements to this other defendant indicating a prejudice toward his (Boatwright's) defense. This allegation was supported with the affidavit of another defendant charged with a drug offense, who stated therein:
As can readily be seen, the facts set out in Boatwright's petition were, if proven, sufficiently specific to show that the petition was meritorious on its face (i.e., that Boatwright was entitled to relief). In contrast, the first two paragraphs of Clisby's ineffective assistance claim contain nothing more than naked allegations that he was denied a constitutional right. The remainder of the claim contains five general statements concerning ineffective assistance of counsel that are insufficient to invoke the right to an evidentiary hearing in the trial court. The first four of these statements refer only to the general nature of certain specific facts which Clisby apparently contends he can prove at an evidentiary hearing (i.e., A. inability to properly cross-examine witnesses, B. absence of effective testimony at the sentencing hearing, C. absence of psychological or psychiatric testimony at the sentencing hearing, and D. absence of testimony or other evidence tending to show an exclusion of blacks from jury panels in Jefferson County in criminal cases in which the defendant is black) and the effect of those facts (i.e., ineffective assistance of counsel).
In the last statement (E.) Clisby alleges that his counsel was ineffective because he failed to raise certain issues on direct appeal. Those issues appear elsewhere in the petition and, although we stated earlier in this opinion that they are ordinarily not subject to review in this kind of proceeding, if sufficiently pleaded they would have to be considered for purposes of the ineffective assistance claim in order to determine whether counsel was constitutionally ineffective in not raising them on direct appeal. In Strickland v. Washington, 466 U.S. *487 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court announced the two-part test for determining when counsel's performance is constitutionally ineffective:
466 U.S. at 687, 104 S. Ct. at 2064.
After a thorough review, we hold that the petition in the present case is not "meritorious on its face," because it is not sufficient on its face to enable the trial court to determine whether the petitioner is entitled to any relief. As to each issue that he maintains his counsel should have raised on direct appeal, Clisby failed to provide a full, clear, and specific statement of the facts relied upon (i.e., those facts necessary to show that had the issue been raised and fully considered on direct appeal, a reversal of the conviction or death sentence would have been required at that time). In other words, Clisby failed to show on the face of the petition that he was entitled to relief under the Strickland test. Mere conclusions of law with regard to the merits of certain issues not raised on direct appeal are not sufficient to invoke the right to an evidentiary hearing on the question of counsel's failure to raise those issues.
For the foregoing reasons, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
MADDOX, JONES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and SHORES, J., not sitting.
HOUSTON, Justice.
APPLICATION OVERRULED.
TORBERT, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
JONES, ALMON and BEATTY, JJ., dissent.
SHORES, J., not sitting.
BEATTY, Justice (dissenting).
I must respectfully dissent from the majority's denial of the petitioner's application for rehearing.
The petitioner argues that, contrary to our decision, his petition for writ of error coram nobis was "meritorious on its face," as required by Ex parte Boatwright, 471 So. 2d 1257 (Ala.1985). All that is required by this standard is that the petition contain matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief. 471 So. 2d at 1258.
In his petition, Clisby alleges, among other things, the following:
How could this, on its face, be made any more meritorious? Obviously, what the petitioner is alleging is that, because he was denied the assistance of a psychiatrist at trial, he was unable to effectively (1) crossexamine witnesses of the state on the critical evidence relating to the question of his mental condition at the time of the crime, and (2) present psychiatric testimony on his behalf in mitigation at the sentencing hearing. If these allegations are true, he would be entitled to relief.
In Ake v. Oklahoma, 470 U.S. 68, at 83, 105 S. Ct. 1087, at 1097, 84 L. Ed. 2d 53 (1985), the United States Supreme Court held that:
In the present case, the petitioner's sanity at the time of the alleged offense was put in issue. See Ex parte Clisby, 456 So. 2d 105 (Ala.1984) (an earlier appeal in this same case). Therefore, accepting the allegations of the petition as true, the petitioner has been deprived of his right to a fair trial because of this denial of psychiatric assistance. The assistance of counsel provided to the petitioner was ineffective because of the denial of psychiatric assistance. Thus, he has clearly raised a constitutional question concerning his claim of ineffective assistance of counsel.
By requiring the petitioner to do more than simply allege a facially valid ground in his petition for writ of error coram nobis, the majority has confused the separate, and until now, distinct, burden which must be met in order to get, on the one hand, an evidentiary hearing on such a petition with that burden which, on the other hand, must be met at such an evidentiary hearing.
I would grant rehearing and withdraw the original opinion in this case. Clisby is entitled to a hearing on his petition for writ of error coram nobis.
JONES and ALMON, JJ., concur. | January 30, 1987 |
621b4d45-050c-4289-91ce-d80dea222dc5 | Strickland v. ALA. FARM BUREAU MUT. CAS. INS. | 502 So. 2d 349 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 349 (1987)
Fred E. STRICKLAND
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
85-352.
Supreme Court of Alabama.
January 9, 1987.
*350 Jim H. Fernandez of Allen & Fernandez, Mobile, for appellant.
Reggie Copeland, Jr., and Forrest S. Latta of Nettles, Barker, Janecky & Copeland, Mobile, for appellee.
BEATTY, Justice.
Appeal by plaintiff, Fred E. Strickland, from a judgment for defendant, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. ("Farm Bureau"), in plaintiff's action against the defendant for breach of a contract of insurance. We affirm.
At the request of Strickland, its insured, Farm Bureau transferred existing collision coverage from a farm truck to Strickland's newly acquired automobile. The new policy was issued effective November 3, 1982; however, no premium payment was made upon issue. The declarations sheet on the new policy, together with the first notice of premium due, was mailed by Farm Bureau and was received by Strickland on November 10, 1982. The premium was not paid. A second notice was mailed by Farm Bureau and was received by Strickland on either November 20 or 21, 1982. That notice recited: "THIS IS YOUR FINAL NOTICE. DO NOT LET YOUR POLICY BE CANCELLED FOR NON-PAYMENT OF PREMIUM."
When no premium payment had been received by December 7, 1982, Farm Bureau on that date mailed a letter to Strickland at the address shown on the policy, the same address as used on previous correspondence and later confirmed as correct by Strickland. This letter stated:
Strickland denied receiving this letter, but maintained that the premium was paid by mail on December 18, 1982. Farm Bureau received the premium payment on December 22, 1982, in a Farm Bureau return envelope postmarked December 21, 1982. In accord with its letter of December 7, 1982, Farm Bureau negotiated Strickland's check, issued a new declarations sheet which reflected a new effective date, December 22, 1982, and mailed the new declarations sheet to Strickland.
Meanwhile, Strickland's automobile was damaged in a collision which occurred on December 20, 1982. Strickland filed a loss report with Farm Bureau on the next day. A Farm Bureau agent contacted Strickland and acquainted him with the question concerning the premium. Another representative contacted Strickland about a week later and arranged to take the policyholder's statement, which was done. After investigation, Farm Bureau denied coverage by letter on January 10, 1983, on the ground that the policy had been cancelled before the date of the accident, December 20, 1982, and that notice of the cancellation had been properly mailed on December 7, 1982.
Thereafter, Strickland filed this action, alleging breach of contract. Following Farm Bureau's answer, Strickland filed an amended complaint alleging bad faith refusal to pay; he later amended the complaint to state a claim based upon fraudulent misrepresentation. Apparently considering matters outside the pleadings, the trial court granted Farm Bureau's motion to dismiss the fraud count, and the case was tried to a jury on the claims of breach of contract and bad faith refusal to pay.
At the close of the evidence, both parties moved for directed verdicts. Farm Bureau's motion addressed to the bad faith *351 refusal to pay count was granted, while Strickland's motion addressed to the contract count was denied. The jury returned a verdict in favor of Farm Bureau. Subsequently, Strickland moved for judgment notwithstanding the verdict or a new trial. This motion was denied, and Strickland appealed.
The standard of review applicable to this appeal is as it was explained in Casey v. Jones, 410 So. 2d 5, 7-8 (Ala.1981):
By way of his motion for J.N.O.V., Strickland also contends that the trial court erred in directing a verdict for Farm Bureau on his bad faith refusal claim and in dismissing his fraud claim. As far as the bad faith refusal claim is concerned, our review of the evidence is made in a light most favorable to Strickland to determine whether or not there was any evidence to support that theory. On the fraud claim, the question is whether there was a genuine issue of material fact regarding the allegation of fraud. Morton v. Allstate Ins. Co., 486 So. 2d 1263 (Ala.1986).
Against the breach of contract claim, Farm Bureau pleaded cancellation as a defense. Under Code of 1975, § 27-23-25:
In Hilliar v. State Farm Mutual Automobile Ins. Co., 451 So. 2d 287, 288-89 (Ala. 1984), this Court cited its decision in Security Ins. Co. of Hartford v. Smith, 360 So. 2d 280 (Ala.1978), for the proposition controlling in these instances:
A review of the record establishes that Farm Bureau complied with these authorities and met its burden of proving the proper mailing of the cancellation notice.
A vice president in Farm Bureau's underwriting department, Ms. Jane Adams, detailed the special procedure used by the company in handling a cancellation notice:
The mailroom supervisor at Farm Bureau, Ms. Linda Hudson, testified that she receives two original copies of the cancellation letter, compares the two for the address, places the signed original in a window envelope, and initials the other to verify her actions. Ms. Hudson further explained that she then places postage on the letters and places them in a postal tray, from which an employee under her direction takes them to a loading dock to be picked up by the Postal Service. She added that persons check to insure that this mail has been picked up and report to her.
In this instance, the initial "L" as written by Ms. Hudson appeared on the unsigned original as did the date stamp, December 7, 1982, applied by her. This evidence clearly established that the cancellation notice was properly mailed. Strickland testified that the address on the notices was the correct mailing address and that he received the billing notices mailed to that address, which notices preceded the cancellation notice. Having this evidence, the jury could have properly found a verdict for Farm Bureau. The trial court was thus not in error for denying Strickland's motion for J.N.O.V. or new trial on the contract count.
It is true, as Strickland argues, that the policy contained a provision which required ten days' notice, while the cancellation letter stated that cancellation was effective immediately. But Strickland can take nothing from that fact. This Court has addressed such a situation in Trans-American Ins. Co. v. Wilson, 262 Ala. 532, 80 So. 2d 253 (1955), which adopted the principle earlier pronounced in Black v. Travelers Ins. Co., 231 Ala. 415, 416, 165 So. 221, 222 (1936):
Under that rule, the cancellation notice became effective ten days after December 7, 1982, i.e., December 17, 1982, which date was still prior to the date of the loss occurring on December 20, 1982.
Finally, Strickland argues that coverage existed for the collision loss because the company had failed to clearly convey to the insured its intent to prospectively apply any premium received. Farm Bureau had the burden of proving that it clearly conveyed its intent to do so to Strickland. The cancellation letter itself stated: "Should you wish to reinstate your policy, we will be happy to comply, effective the date premium is received." This was a clear expression of Farm Bureau's intent, as the jury must have found.
In National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), this Court explained:
There is nothing in the record indicating that this case falls beyond the normal. Not only does the proof in this case fail to show that Strickland was entitled to a directed verdict, but, to the contrary, the evidence supports the verdict of the jury in favor of Farm Bureau. Thus, the tort claim failed as a matter of law. Mordecai v. Blue Cross-Blue Shield, 474 So. 2d 95 (Ala.1985); Dutton, supra.
Strickland's allegations of fraud are contained in Count III of his amended complaint:
Farm Bureau's motion to dismiss this fraud count was argued to the trial court and then granted, apparently under the authority of Rule 12(b), A.R.Civ.P. It appears that the fraud claim was based upon the allegation that Strickland had mailed his late premium check to Farm Bureau. This was alleged as the reliance. Thus, whatever misrepresentation existed must have occurred prior to that reliance. See Sovereign Camp, W.O.W. v. Moore, 232 Ala. 463, 168 So. 577 (1936); Code of 1975, § 6-5-101. In other words, the element of reliance cannot precede the alleged misrepresentation where fraud by misrepresentation is claimed.
Strickland argues fraud by suppression from the fact that Farm Bureau's agents, during their investigation, told Strickland nothing about the company's intention to cancel or to apply any premium received thereafter prospectively. Strickland, however, failed to adduce any evidence that these agents possessed any prior knowledge of either the company's intention to cancel or to apply, prospectively, any premium received thereafter, or that these agents, themselves, had any intention to deceive him. In short, no evidence of any active concealment or misrepresentation was shown to be present. Berkel & Company Contractors, Inc. v. Providence Hospital, 454 So. 2d 496 (Ala.1984). The company clearly disclosed its intention to prospectively apply late premiums, as we have shown. No inference of concealment is suggested by the fact that such action was taken by the company following the mailing of the late payment, or from any other conduct on the part of the company. Summary judgment, therefore, was appropriate on the plaintiff's fraud count.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, ADAMS and HOUSTON, JJ., concur. | January 9, 1987 |
5d31c4cf-cad8-4412-874a-2234c44531f4 | Noble v. McManus | 504 So. 2d 248 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 248 (1987)
Bernard J. NOBLE
v.
Glover McMANUS, et al.
85-1084.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied March 20, 1987.
*249 L. Thompson McMurtrie of Hess & McMurtrie, Huntsville, for appellant.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver, & Roth, Decatur, for appellees.
HOUSTON, Justice.
Bernard J. Noble was injured in the line and scope of his employment in February 1984. He filed an action against his employer seeking workmen's compensation benefits; against co-employees seeking damages for negligence, wantonness, and failing to provide Noble a safe place to work; and against Fireman's Fund Insurance Companies, the workmen's compensation insurance carrier for Noble's employer, for negligence and wantonness in performing safety inspections. The trial court granted summary judgments to the co-employee defendants, Glover McManus, John Sivley, and Ronnie Joe Johnson ("co-employees"), and Fireman's Fund. Those summary were made final pursuant to Rule 54(b), Ala.R.Civ.P. Noble appealed. The appeal against Fireman's Fund has been dismissed. Under his "Statement of Issue" the following appears: "The sole issue presented herein is whether the trial court abused its discretion in granting summary judgments on behalf of the Defendants, instead of continuing the hearing until the defendants had complied with the court's outstanding discovery order."
Noble filed a motion to require each of the co-employees to give more definite answers to the following interrogatory: "Please state your job description as given to you by your employer, or in the alternative, attach a copy of it to your answers to these interrogatories." The trial court granted the motion and ordered the co-employees to respond within twenty days. Before this response was made, the trial court granted the co-employees' motion for summary judgment, which was based on "the deposition of the plaintiff and the interrogatory answers on file in this cause."
The co-employees contend that Noble failed to comply with Rule 56(e) and (f), Ala.R.Civ.P., in that he produced no evidence to negate or contradict the materials submitted by the co-employees and failed to file an affidavit to show specifically why a continuance should be granted and why that continuance would result in a showing of genuine issues of material fact.
The pertinent part of Rule 56(e) provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
Rule 56(f) provides: "Should it appear from the affidavits of a party opposing *250 the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." (Emphasis added.)
The co-employees contend that as field superintendent, general foreman, and project superintendent they had no personal duty to Noble and that they assumed no specific safety responsibility or function that was violated under the specific facts of this case. We cannot find where this contention is supported by the evidence before the trial court under Rule 56(e), so as to cast on Noble the burden of complying with Rule 56(f).
It would have been prudent for Noble to have filed such an affidavit, because a trial court is not required to treat a motion to compel as satisfying the requirements of this section. Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir.1983) (Fed.R.Civ.P., 56(f) is identical to Rule 56(f), Ala.R.Civ.P.). Judge Kravitch distinguished Wallace from Parrish v. Board of Comm'rs of Alabama State Bar, 533 F.2d 942 (5th Cir.1976). In Parrish, a motion to compel the State Bar to furnish bar examination papers in a dispute involving allegations of discriminatory grading of bar examination papers was pending whem summary judgment was granted to the State Bar. The Fifth Circuit held it was error to grant summary judgment without first requiring production of the test papers, since these papers were crucial to Parrish's case. In Wallace no such critical evidence was missing, and Judge Kravitch noted: "Most, if not all, cases involving a rule 56(f) issue will be factually dissimilar. For this very reason, a blanket rule would be inappropriate." 703 F.2d at 528.
In the case at issue, the job description of these defendants was crucial. If one of the personal job duties of these co-employees, as opposed to a general duty of safety owed by the employer, was to provide employees a safe place to work, then under the law as it existed in February 1984, there may be liability to Noble. Kennemer v. McFann, 470 So. 2d 1113 (Ala.1985); Welch v. Jones, 470 So. 2d 1103 (Ala.1985); Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala.1980). If the full answers to the interrogatories addressed to each of these co-employees reveal that they had no personal duty to Noble and assumed no specific safety responsibility or function that was violated, then summary judgment for these co-employees may be appropriate. The trial court may determine this based upon the strict standards set under Kennemer, Welch, and Fireman's Fund; however, even assuming that the co-employees had met their burden under Rule 56(e), Noble had the right to have full answers to such interrogatories before the trial court ruled on the motions for summary judgment. The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
4b4fbd91-b4c0-4261-b961-8d668eaebd79 | Ex Parte Franklin | 502 So. 2d 828 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 828 (1987)
Ex parte Randy FRANKLIN.
(Re: Randy Franklin v. State).
85-1532.
Supreme Court of Alabama.
January 30, 1987.
Michael S. Jazwinski of Prestwood, Prestwood & Jazwinski, Andalusia, for petitioner.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
This case is before us on writ of certiorari to the Court of Criminal Appeals, 502 So. 2d 821. Although, after preliminary examination, we initially granted the writ in order to review the issue raised in the petition,[1] after reviewing the briefs submitted by the parties, we are of the opinion that we cannot reach the merits of this issue.
Petitioner argued in his petition that the decision of the Court of Criminal Appeals is in conflict with the holding of the United States Supreme Court in Michigan v. Clifford, *829 464 U.S. 287, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984). Specifically, he argued that certain evidence seized by the authorities and introduced in his trial on the charge of arson in the second degree, in violation of Code of 1975, § 13A-7-42, should have been suppressed. However, our examination of the petition reveals that the petitioner has failed to comply with the requirements of Rule 39(k), A.R.App.P., which provides, in pertinent part, as follows:
See also Ex parte Grear, 484 So. 2d 381 (Ala.1985).
The only facts stated in the opinion of the Court of Criminal Appeals that relate to this issue are to the effect that the evidence seized and admitted at trial was found by the authorities while they were conducting an investigation, immediately after the fire, to determine the origin of the fire and to insure against the danger of rekindling caused by any remaining "hot spots." Such an investigation is not prohibited by the Fourth and Fourteenth Amendments to the United States Constitution. See Michigan v. Clifford, supra; Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Without a more complete and/or corrected statement of the facts, as provided for by Rule 39(k), A.R.App.P., we can reach no other decision.
Therefore, we are of the opinion that this writ must be quashed as improvidently granted.
WRIT QUASHED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
[1] Our examination of the petitioner's brief submitted in support of his petition for writ of certiorari reveals that several other issues are argued. We cannot reach these issues. It has long been settled that this Court can only address those issues that are set out in the petition as grounds for certiorari. See Rule 39, A.R. App.P.; Nix v. State, 271 Ala. 628, 126 So. 2d 123 (1961); Liberty National Life Ins. Co. v. Stringfellow, 265 Ala. 561, 92 So. 2d 927 (1957). | January 30, 1987 |
a283185b-425c-4a65-ade5-1e1b66b26ab8 | Speigner v. Howard | 502 So. 2d 367 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 367 (1987)
Robert C. SPEIGNER and Willie P. Speigner
v.
I. Sunnie HOWARD and Lowder Realty Company, Inc., d/b/a Lowder Realty Better Homes and Gardens.
85-898.
Supreme Court of Alabama.
January 9, 1987.
*368 Charles H. Volz III of Volz and Volz, Montgomery, for appellants.
Sterling G. Culpepper, Jr., of Balch & Bingham, Montgomery, for appellees.
BEATTY, Justice.
Robert C. and Willie P. Speigner appeal from a summary judgment for defendants I. Sunnie Howard and Lowder Realty Company, Inc., d/b/a Lowder Realty Better Homes and Gardens ("Lowder") in plaintiffs' action based upon fraud, negligence, and wanton conduct in the sale of a house. That summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P. We affirm.
The lawsuit grew out of the sale of a home owned by Mrs. Missouri Dukes Minor to the Speigners and their subsequent experience with leaks of rainwater after they took possession.
Mrs. Minor had purchased the house around 1978. Two years later, she added a "Florida room," which was constructed with a flat roof. This roof is not visible from a ground position outside the house. Approximately one year after she added this room, Mrs. Minor noticed, at different times, two leaks in the ceiling of that room. According to Mrs. Minor, after having the roof repaired, she experienced no additional leaks.
On September 27,1984, Ms. Sunnie Howard, a listing agent with Lowder, met with Mrs. Minor at the house and obtained an exclusive listing for the sale of the house. At that time, Mrs. Minor informed Ms. Howard about the leaks and the repairs. Ms. Howard completed a "listing profile sheet" on the house, which included a reference to the "Florida room." A contradiction exists between the testimony of Ms. *369 Howard and that of Mrs. Minor concerning the availability of the "Florida room" for viewing on that occasion. Mrs. Minor deposed that she and Ms. Howard "went all over the house," including the "Florida room." But, according to Ms. Howard, she was told that they could not get into that room because the lock mechanism on the outer security doors, which covered the sliding glass doors, was rusted so as to prevent opening the door. According to Ms. Howard, she later had this defect repaired by a locksmith, but the key Mrs. Minor had for the door would not open the lock.
Ms. Howard stated further that Mrs. Minor told her that she, Mrs. Minor, had another set of keys in New York, where she had gone for a time, and would send Ms. Howard those keys. Ms. Howard never received these keys, but Ms. Howard had the locksmith make a key to the back door of the "Florida room" on the day the sale was closed. Mrs. Minor disputed this, deposing that she had left a key to the "Florida room" in a cigarette box in the den, and denied making any commitment to send any keys from New York.
Soon after Mrs. Minor's house was put on the market, the Speigners were contacted by Ms. Andrea Chambers, a real estate agent. When the Speigners expressed interest, Ms. Chambers contacted Ms. Howard and arranged to show the house to the Speigners. According to Ms. Chambers, the "Florida room" was locked when she showed the house, so they were unable to view that room except by looking through the windows. Both Mr. and Mrs. Speigner viewed the house and grounds. Ms. Chambers deposed that during Mr. Speigner's viewing, he asked "about the roof" and was told by her that the multiple listing sheet stated that it had no known defects.
The Speigners made an offer on the house, which Mrs. Chambers passed on to Ms. Howard, along with an inquiry regarding any known defects in the roof. According to Mrs. Chambers, Ms. Howard replied that she had telephoned Mrs. Minor in New York and had been told that the roof was "okay." Mrs. Chambers added that she gave this information to the Speigners.
Ms. Howard deposed that she telephoned Mrs. Minor and inquired specifically about the roof on the "Florida room" and about the key, which, she was assured, she would receive in a few days. She was told that the roof was okay. She relayed the information to Mrs. Chambers, who communicated it to the Speigners.
Mrs. Minor contradicted this version of the events, deposing that she discussed neither the roof nor the keys with Ms. Howard by telephone while she was in New York. Mrs. Minor also deposed that when she returned from New York to pack her furniture, Ms. Howard came to the house on two occasions. On both occasions, she said, they went into the "Florida room" by unlocking the security door with a key and opening the sliding doors. However, Mrs. Minor did not contradict Ms. Howard's testimony about her earlier conversation with Ms. Howard in which Mrs. Minor had referred to the roof's repair and subsequent good condition.
The house was listed for sale on September 27, 1984. The Speigners offered to purchase the house on or about October 13, 1984. Mrs. Minor accepted the offer on October 29, 1984, and the sale was closed on January 9, 1985. Thus, from the approximate date of the Speigners' offer and the date of closing (a period of about 88 days), the Speigners never entered the "Florida room" and, apparently, did not seek to do so.
Approximately one week after the Speigners took possession of the house, they observed leakage in the ceiling of the "Florida room." They complained through the agents to Mrs. Minor, who disclaimed any responsibility. This action ensued against Mrs. Minor, Ms. Howard, and Lowder.
Plaintiffs' complaint contained several counts. Count I charged defendants with fraud in misrepresenting the condition of the roof. Count II charged fraudulent concealment of the roof's condition. Count III charged Mrs. Minor (who is not a party to *370 this appeal) with fraudulent concealment of the roof's condition. A later amendment added two counts: Count IV, which charged Ms. Howard and Lowder with breach of duty to discover adverse factors; and Count V, which charged Ms. Howard and Lowder with negligence and wanton conduct in failing to ascertain the defective condition of the roof after undertaking to do so.
The defendants answered the original and amended complaints. All defendants moved for summary judgment, based upon the pleadings and the depositions of Andrea Chambers, Robert Speigner, and Sunnie Howard.[1] Following a hearing, the trial court granted summary judgment for Ms. Howard and Lowder. This appeal followed.
The charge against Ms. Howard and Lowder here is that they informed the plaintiffs "that said dwelling, and specifically, the roof thereon, was in good condition" and "represented to plaintiffs that there were no defects in the roof of said dwelling, and ... represented that a new roof had been put on said dwelling within a year or a year and a half prior to the execution of said contract." Allegations of falsity and reliance followed.
Fraud is defined in Code of 1975, § 6-5-101:
In their brief, plaintiffs make much of the contradiction existing between Mrs. Minor and Ms. Howard as to whether Ms. Howard did telephone Mrs. Minor in New York and inquire about the roof's condition. Ms. Howard says she did so, while Mrs. Minor says they never discussed the roof during those telephone conversations.
As this Court has previously stated in Earle, McMillan & Niemeyer, Inc. v. Dekle, 418 So. 2d 97, 100 (Ala.1982):
Fraud "in a legal sense" is a misrepresentation of a material fact, i.e., one of such a nature as would induce the injured person to take action. Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985). Under the facts before the trial court, it is clear that the inducement to the Speigners' purchase here was not whether Ms. Howard did or did not telephone Mrs. Minor in New York. Indeed, Mrs. Minor did not deny telling Ms. Howard that the roof was in good condition or that it had been repaired earlier. Thus, the dispute as to whether Ms. Howard did or did not receive this information in a telephone call to New York clearly was not material.
Therefore, the gravamen of the fraud charge in Count I is that Ms. Howard falsely stated, either willfully, recklessly, or mistakenly, that the roof was in good condition, when in fact it was not.
It is clear that Ms. Howard had no personal knowledge of the condition of the roof. Her only information concerning the roof came from the seller, Mrs. Minor, whose statements concerning the roof were simply relayed to Ms. Howard. Ms. Howard then relayed the information to Ms. Chambers, who, in turn, relayed it to the Speigners. No one questions the accuracy of Ms. Howard's own statements, and, therefore, her statements were not, as *371 made by her, misrepresentations. Consequently, neither Ms. Howard, nor her employer, Lowder, can be held liable in fraud for merely conveying the statements of their principal to the agent of the Speigners, there being no evidence of bad faith on her part. Estes v. Crosby, 171 Wis. 73, 175 N.W. 933, 8 A.L.R. 1377 (1920). And see Sealy v. McElroy, 288 Ala. 93, 257 So. 2d 340 (1972).
In Count II, plaintiffs charged that Ms. Howard and Lowder knew, or should have known, that the roof was in poor condition and fraudulently concealed this fact with knowledge that the disclosure of this fact to plaintiffs would have caused them not to consummate the purchase.
In a similar roofing case, Sanders v. White, 476 So. 2d 84, 85 (Ala.1985), this Court quoted with approval the following elements of fraudulent concealment discussed in Marshall v. Crocker, 387 So. 2d 176 (Ala.1980):
And, in Harrell v. Dodson, 398 So. 2d 272 (Ala.1981), a case involving the sale of a home through brokers and agents, this Court held that one can be liable for fraudulent concealment only for concealing facts of which he has knowledge. Although Mrs. Minor did tell Ms. Howard of a former problem with leaks in the roof, she also assured Ms. Howard that the roof had been repaired and was in good condition at the time of listing. That is the information which Ms. Howard possessed. The fact that she knew from the owner that repairs had previously been made, standing alone, did not imput to Mrs. Howard any knowledge of present deficiencies in the roof. See Sanders v. White, supra. Indeed, according to the deposition of Mr. Speigner, he never inquired about the history of the roof's condition nor about past defects in the roof which had been repaired. The gist of Mr. Speigner's questions concerned the present condition of the roof:
In any case, the facts disclose that Ms. Howard was the seller's (listing) agent, while Mrs. Chambers was the buyer's agent. There were no direct dealings between the Speigners and Howard. Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983). Nor was there any "inequality of condition and knowledge, or other attendant circumstances" obliging Ms. Howard to do more than she did. Ibid. The Speigners had their own agent, visited the property, viewed the "Florida room" through the glass doors, and decided to purchase the house without inspecting, indeed, without insisting upon an inspection of, that room. For aught that appears, they had the same knowledge of the "Florida room" that Ms. Howard possessed. Under the facts disclosed, we must conclude that Ms. Howard concealed no material fact from the Speigners and was under no duty to disclose any other or additional facts to the Speigners.
Count III related to Mrs. Minor and thus is not before us on this appeal.
In this count, plaintiffs alleged that Ms. Howard, as a "realtor" or "realtor-associate," and Lowder "owed to Plaintiffs an affirmative obligation and duty to exercise reasonably competent and diligent investigation or inspection of said premises" and that these defendants breached that duty "in that ... each of them, negligently, wantonly and/or recklessly failed and/or refused to take any steps whatsoever to discover any such adverse factors." These allegations simply alleged that Howard and, therefore, Lowder, owed a duty of care to the Speigners to discover and report to them the existence of a faulty roof in this house (assuming it existed prior to their purchase).
But there was no confidential relationship between Ms. Howard and the Speigners, as we have herein found. In a succession of cases, this Court has applied the doctrine of caveat emptor in the purchase of used houses. See, e.g., Cashion v. Ahmadi, 345 So. 2d 268 (Ala.1977) (caveat emptor applied in the sale of a used house where the alleged defect does not affect health or safety); Ray v. Montgomery, 399 So. 2d 230 (Ala.1980) (caveat emptor applied in the resale of used residential real estate); Cooper & Co. v. Bryant, supra; Sanders v. White, supra. Here, the parties were dealing at arm's length, each side with its own agent versed in real estate transactions. Under the facts, this situation was one for the application of the doctrine of caveat emptor. Keeler v. Chastang, 472 So. 2d 1031 (Ala.1985).
In this count, plaintiffs alleged the following:
Under these allegations, the Speigners would have this Court hold that when they inquired of their own agent, Mrs. Chambers, about the condition of the roof, and when this question was relayed by their agent to Ms. Howard, the agent of Mrs. Minor, the seller, the seller's agent herself became obliged to affirmatively ascertain the roof's condition. In that connection, plaintiffs in their brief argue that Ms. Howard had actual knowledge of the leaks and failed in her obligation to disclose this to the Speigners. However, the facts disclose that Ms. Howard's knowledge consisted of what she had been told by Mrs. Minor, both at the time she took the listing and during any subsequent conversations up to the time of closing. Her knowledge of the roof was that Mrs. Minor had stated that it was "in good shape."
We reiterate that this was an arm's length transaction. As stated in Mudd v. Lanier, 247 Ala. 363, 377, 24 So. 2d 550 (1945):
When the information was requested here, Ms. Howard was obligated to reveal her knowledge. She complied. She was not obliged to do more; certainly she was not obligated to become a guarantor of her principal's assurances. If the Speigners had desired guarantees of freedom from roofing defects, they were in a bargaining position to insist on them. Ray v. Montgomery, supra, at 233. If, as it is argued, the Canons of Ethics of the National Association of Real Estate Agents place an obligation upon the agent to personally verify his principal's declarations in a real estate transaction, such a requirement is not the law in this jurisdiction.
The Court has carefully weighed the facts and arguments of counsel and has concluded that the trial court's judgment must be affirmed. It is so ordered.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
[1] Mrs. Minor's motion for summary judgment, based upon "the pleadings and all depositions... heretofore taken" was denied. Apparently, therefore, the trial court had before it the deposition of Mrs. Minor when it ruled upon the defendants' motions for summary judgment. | January 9, 1987 |
1937684d-51c8-4ad0-887e-8e3fbef38b67 | Elmore v. Morrison Assur. Co., Inc. | 502 So. 2d 378 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 378 (1987)
Scott ELMORE, Peggy Elmore, Rex Cain, and Linda Cain
v.
MORRISON ASSURANCE COMPANY, INC.
85-176.
Supreme Court of Alabama.
January 23, 1987.
Thomas E. Snoddy, Double Springs, for appellants.
M. Clay Ragsdale IV of Starnes & Atchison, Birmingham, for appellee.
MADDOX, Justice.
This case involves questions of whether the trial judge improperly instructed the *379 jury, and whether the trial judge improperly commented upon the evidence in the case.
Morrison Assurance Company, Inc. ("Morrison"), surety on a performance bond which guaranteed the reclamation of lands on which surface mining operations were conducted, filed this action in the Circuit Court of Jefferson County to recover damages from Cefco Coal Company, Inc. ("Cefco"), and Scott Elmore, Peggy Elmore, Rex Cain, and Linda Cain (owners of Cefco), indemnitors under the bond. Morrison filed a motion for summary judgment, which the trial court granted, against Cefco and the owners, on the issue of liability under the terms of the contract, and gave Morrison leave to prove its damages, if any. A jury trial was had on the damages issue; the jury returned a verdict in favor of Morrison in the amount of $40,000, and the trial court entered a judgment on the jury verdict. We affirm.
Cefco was a corporation engaged in the surface mining of coal. In order to engage in the surface mining of coal, the Alabama Surface Mining Reclamation Act of 1975 (Alabama Code 1975, § 9-16-30, et seq.) required Cefco to apply for and obtain a license, and, in addition, required it to obtain a permit describing the land upon which the surface mining was to be done. Section 9-16-44 requires the applicant for a permit to file with the commission a bond executed by a corporate surety licensed to do business in Alabama, conditioned upon the faithful performance by the applicant of the reclamation plan submitted to and approved by the Commission.
Morrison issued reclamation surety bonds on behalf of Cefco, guaranteeing the reclamation of lands disturbed in Cefco's mining operations. In consideration for the issuance of the surety bonds, the owners signed an indemnification agreement.
Cefco defaulted on its reclamation obligations, and the Alabama Surface Mining Commission made a demand against the bonds. Morrison investigated the claims and expended money in having the lands reclaimed and forfeited the penal sum of the bonds. Morrison then filed suit against the owners, as indemnitors, to enforce the terms of the indemnity agreement and compel each owner to reimburse and exonerate Morrison for its losses.
Appellants do not question the propriety of the issuance of summary judgment on the question of liability, but contend that the trial court erred in two respects: (1) that the trial judge improperly commented on the evidence; and (2) that the trial judge improperly charged the jury. The owners argue that the trial judge, in his jury charge, was so one-sided and dictatorial that the jurors felt that they should return a verdict in favor of Morrison.
Rule 51, Ala.R.Civ.P., states that in charging the jury, the trial judge shall not express his opinion of the evidence. It is also well settled that when this Court examines jury charges claimed to be erroneous, we look to the entirety of the trial court's charge to see if there was reversible error. Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala.1980).
Applying this rule, we are of the opinion that the trial court did not make an impermissible comment on the disputed evidence in this case. The issue in this case was whether Morrison acted in good faith in making payments to the Alabama Surface Mining Commission. The owners do not cite even one instance where the trial court commented on the evidence adduced at trial which alludes to the question of the amount of the damages, which was the only issue presented to the jury. The owners cite several pages of the record as examples of commentary on the evidence, but a close examination of these pages reveals no reference to the evidence on the damages issue. As already stated, applicants do not claim here that summary judgment was improperly granted on the issue of liability; consequently, the only issue of fact left was how much money was owed.
*380 We are convinced, after a review of the record, that the owners failed to establish that the court singled out evidence or gave any particular evidence undue emphasis. The owners also failed to meet their burden of establishing that the charge, taken as a whole, was prejudicial. The jury charge in this case fairly and accurately sets forth the law as it pertains to the measure of damages in the context of a surety and principal relationship and instructs the jury to award damages in the amount that was paid in good faith.[1]
The owners also argue in their brief:
This challenge by the owners to the charge at trial does not identify how or in what respect this instruction differs from Alabama law. The law in Alabama is clear that the mere insistence of error without mention of authority does not amount to an argument. Claims of error not substantially argued in brief will be deemed waived and will not be considered by the Court. Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So. 2d 780 (1972); Alabama Electric Co-Operative, Inc. v. Partridge, 284 Ala. 442, 225 So. 2d 848 (1969). We will therefore not consider this argument on appeal.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur.
[1] The trial court charged the jury on good faith as follows:
"Want of good faith involves more than bad judgment or negligence or insufficient zeal. In order to find that Morrison was acting in bad faith or was not acting in good faith, you would have to be reasonably satisfied from the evidence that Morrison was acting with a dishonest purpose. Lack of good faith carries an implication of a dishonest purpose, a conscious doing of wrong, a breach of a duty through motives of self-interest or ill will. That's what we mean by lack of good faith." | January 23, 1987 |
281b4b0f-3072-4dae-bab3-0d421888de8f | Lee v. Tolleson | 502 So. 2d 354 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 354 (1987)
Ruth D. LEE, individually, and as Administratrix of the Estate of Lizzie Bowens, Deceased
v.
Rudy TOLLESON.
85-394.
Supreme Court of Alabama.
January 9, 1987.
Peggy Hale Cook, Birmingham, for appellant.
Thomas A. Woodall of Rives & Peterson, Birmingham, for appellee.
TORBERT, Chief Justice.
This is an appeal from a summary judgment and a subsequent order denying a Rule 60(b), A.R.Civ.P., motion to set aside that judgment. Both were entered against the plaintiffs[1] in their action to recover damages for personal injuries and property damage incurred in a highway collision between their automobile and a runaway "charging" horse allegedly owned by the defendant-appellee Tolleson. We affirm.
The complaint averred that defendant was negligent in failing to secure the horse; that the horse possessed dangerous *355 propensities of which defendant knew and which made it likely to charge motor vehicles if left unrestrained; and that defendant's negligence in not restraining it was the proximate cause of plaintiffs' injuries. The complaint also contained a wantonness count.
Defendant answered, denying plaintiffs' allegations. He then filed a motion for summary judgment based on his pleadings and affidavit, relying on § 3-5-3, Code of Alabama 1975, which he cited as controlling the issues in the case. Section 3-5-3 premises liability on proof that the owner "knowingly or willfully put or placed" his stock upon the highway "where ... damages were occasioned." In his affidavit, defendant averred that he neither owned the horse, nor knowingly or willfully placed it upon the highway where the collision occurred; and, further, he denied that he ever knew the horse to be vicious, mischievous, or otherwise dangerous.
Plaintiffs' attorney submitted no evidence opposing the motion, nor did he appear for its hearing. The court granted the motion and entered judgment accordingly. The attorney then filed a motion to reconsider, pursuant to Rule 59(e), A.R. Civ.P. Again, however, he submitted no supporting evidence and did not appear for the scheduled hearing. The trial court subsequently overruled this motion.
Plaintiff retained new counsel, who, alleging inadequate representation by former counsel, filed a motion pursuant to Rule 60(b)(6), A.R.Civ.P., to set aside the summary judgment. That motion was also overruled, and this appeal was taken.
Appellant challenges the summary judgment, the denial of the Rule 60(b) motion and, in addition, challenges the constitutionality of § 3-5-3 under § 13 of the Alabama Constitution and under the due process and equal protection clauses of the United States Constitution.
In Scott v. Dunn, 419 So. 2d 1340 (Ala. 1982), we upheld § 3-5-3 against a constitutional challenge identical to that raised here; were we compelled to do so, we would reject appellant's challenge on the authority of that case. However, we need not reach that issue, for we find § 3-5-3 inapplicable to the facts as alleged in plaintiffs' complaint.
In Scott v. Dunn we distinguished the cases to which § 3-5-3 applies. Noting that "§ 3-5-3(a) makes no reference to damages caused by a `known mischievous animal'," we concluded that "[p]ersons injured by a negligently loosed animal of dangerous propensities still have the same common law remedy that has always existed under Alabama common law." 419 So. 2d at 1345. Regarding that common law remedy, we cited Smith v. Causey, 22 Ala. 568 (1853).
In that case this Court set out the elements of the cause of action underlying the remedy:
22 Ala. at 571. Thus, plaintiffs stated a claim cognizable under the common law of Alabama, not under § 3-5-3. Our holding in Smith v. Causey makes it clear that these plaintiffs' claim is actionable only if the animal involved possessed vicious propensities of which its owner had knowledge. Although defendant proceeded erroneously on § 3-5-3, his affidavit submitted in support of his motion for summary judgment avers that he had never known the horse to be mischievous or otherwise dangerous.
The law is clear that once a motion for summary judgment is made and supported, the adverse party cannot show a genuine issue of fact to preclude summary judgment by resting on its pleadings, but must present facts controverting those presented by the moving party. See Turner *356 v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985); Braswell Wood Co. v. Fussell, 474 So. 2d 67 (Ala.1985). Plaintiffs offered no such evidence. We, therefore, must consider it an uncontroverted fact that defendant had no knowledge that the horse possessed dangerous propensities. See, e.g., Garrigan v. Hinton Beef & Provision Co., 425 So. 2d 1091 (Ala.1983); Rushton v. Shugart, 369 So. 2d 11 (Ala.1979). Since scienter is an indispensable element of plaintiffs' cause of action under the applicable common law rule, there existed no genuine issue of material fact and defendant was entitled to a judgment as a matter of law, notwithstanding the erroneous categorization of the action under § 3-5-3.
However, appellant argues that the trial court abused its discretion by not, on its own motion, continuing the proceedings in light of the absence of plaintiffs' attorney. We see no merit in that argument and, further, we view it as inappropriate when raised in a direct challenge of a summary judgment.
Absent knowledge of the circumstances accounting for an attorney's absence, the trial court need not even consider the fact that the attorney is absent when ruling on a motion for summary judgment. It is the burden of the parties to the action to bring to the court's attention any such circumstances. Failing to do so before the court rules, the parties waive any direct challenge to that ruling based on the attorney's absence; they must then resort to motions pursuant to either Rule 59(e) or Rule 60(b), A.R.Civ.P., to place before the court the circumstances of the absence in order to challenge the propriety of the ruling in light of them.
We find no abuse of discretion. We hold that the trial court appropriately granted defendant's summary judgment and, thus, we affirm that judgment.
Appellant next contends that the trial court abused its discretion in denying plaintiffs' Rule 60(b)(6) motion to set aside the summary judgment.
In determining whether there is an abuse of discretion, this Court considers the grounds for the motion and the matters presented in support thereof. See Marsh v. Marsh, 338 So. 2d 422 (Ala.Civ.App.1976). The plaintiffs supported their motion with an affidavit which averred that they could have produced evidence controverting that evidence submitted by defendant in support of his motion for summary judgment; that the evidence would have been produced had their first attorney been present at the hearing on the motion; and that his absence denied them effective assistance of counsel, thereby violating their rights to procedural due process of law. Appellant argues that this lack of procedural due process qualifies under Rule 60(b)(6) as "any other reason" justifying relief.
In Sidwell v. Wooten, 473 So. 2d 1036 (Ala.1985), we held that "[i]n an ordinary civil case, the general rule regarding ineffective assistance of counsel is that relief from a court's judgment when a party hired his own lawyer will not be granted on the grounds of incompetent or ineffective counsel." Yet, as with most general rules, there are exceptions.
Relief may be granted where there exist extraordinary circumstances, as where "the personal problems or psychological disorders of an attorney cause him to neglect a case to the extent that a default or summary judgment is entered against the unsuspecting client." Sanford v. Arjay Oil Co., 686 P.2d 566, 571 (Wyo. 1984). See L.P. Steuart, Inc. v. Matthews, 329 F.2d 234 (D.C.Cir.1964), cert. denied, 379 U.S. 824, 85 S. Ct. 50, 13 L. Ed. 2d 35 (1964); United States v. Cirami, 563 F.2d 26 (2d Cir.1977). In order to justify relief because of extraordinary circumstances, however, it is not enough to point at the mere fact that one's attorney was absent from a scheduled hearing. Nothing in such a claim indicates that the attorney's failure to appear "`was other than deliberate or the product of neglect,'" United States v. Cirami, 563 F.2d at 34, (quoting Link v. Wabash Railroad Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)); or "the *357 result of his having taken on too many cases to give proper attention [to the one at hand]," id. (citing Schwarz v. United States, 384 F.2d 833, 836 (2d Cir.1967); Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir.1975)). Reasons accounting for the attorney's absence must also be set forth, and they must show a set of extraordinary circumstances. See Sanford v. Arjay Oil Co., 686 P.2d 566 (Wyo.1984) (personal problems or psychological disorders of attorney held extraordinary circumstances); United States v. Cirami, 563 F.2d 26 (2d Cir.1977) (attorney's "constructive disappearance" due to mental illness held extraordinary circumstances); Vindigni v. Meyer, 441 F.2d 376 (2d Cir.1971) ("the unusual fact of the complete disappearance of plaintiff's attorney" held extraordinary circumstances).
Appellant sets forth no reason explaining the attorney's absence. We find nothing to justify the relief appellant seeks. See United States v. Cirami, 535 F.2d 736 (2d Cir.1976). Given the lack of evidence supporting the plaintiffs' motion, we find that the trial court did not abuse its discretion in overruling that motion. We affirm.
The summary judgment and the Rule 60(b) ruling are therefore due to be, and they hereby are, affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, BEATTY, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., concurs in the result.
[1] There were originally two plaintiffs. Prior to the appeal of this case, plaintiff Lizzie Bowens died. The other plaintiff was appointed administratrix of her estate. Thus, this appeal is pursued in appellant Lee's individual and representative capacities. | January 9, 1987 |
8222dfd6-d275-4ec0-ab42-d8ba480abf34 | Ex Parte Lasley | 505 So. 2d 1263 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1263 (1987)
Ex parte Bruce LASLEY.
(In re: Bruce Lasley v. State of Alabama).
85-1398.
Supreme Court of Alabama.
February 6, 1987.
Daniel L. McCleave, of Pennington, McCleave & Patterson, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This is a review by writ of certiorari to the Court of Criminal Appeals, 505 So. 2d 1257. Bruce Lasley was convicted on two counts of assault in the first degree. He *1264 was sentenced to terms of twenty-two years on each count, to run concurrently.
After the trial it was discovered that three of the jurors had conducted separate home experiments in attempts to test petitioner's theory of defense. The results of two of these experiments were communicated to the other jurors. One of the jurors also consulted a law book to aid her understanding of certain legal terms and concepts. The issue is whether such juror misconduct might have unlawfully influenced the jury.
Petitioner was alleged to have intentionally injured Terrance and Troy Smith, aged three years and four years, by placing or holding them in scalding water until they were severely burned. At the time of the alleged assault, petitioner was living with Sharon Smith, mother of the victims. Petitioner was at home alone with the children. He testified that he was giving them a bath when he was distracted by a knock at the door. According to his testimony, he returned to find the boys standing in scalding hot water.
The State's case was based entirely on circumstantial evidence. Dr. Ramenofsky, a pediatric surgeon, testified concerning emersion burns, the spans of time during which emersion burns will occur at varying temperatures, and possibilities as to how such burns can be received in household bathtubs. The home experiments conducted by the jurors consisted of running tubs of hot water, checking the temperatures at varying levels and recording the time periods that it took to reach various temperatures. The trial court conducted a post trial hearing at which each juror was called to testify, under oath, regarding the home experiments.
There is no doubt that the home experiments constituted juror misconduct. The only question is whether the misconduct requires a new trial. The standard for determining whether juror misconduct requires a new trial is set forth in Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932).
The Roan test mandates reversal when juror misconduct might have influenced the verdict. This test casts a "light burden" on the defendant. Ex parte Troha, 462 So. 2d 953 (Ala.1984).
Application of the rule cannot in all cases depend entirely upon the jurors' statements that the extraneous information did not affect their verdict.
The integrity of the factfinding process is the heart and soul of our judicial system. Judicial control of the jury's knowledge of the case is fundamental. Our rules of evidence are designed, so far as humanly possible, to produce the truth and to exclude from the jury those facts and objects which tend to prejudice and confuse. Evidence presented must be subject to cross-examination and rebuttal. The defendant's constitutional rights of confrontation, of crossexamination, and of counsel are at stake.
The Court of Criminal Appeals reasoned that some of the results of the experiments were beneficial to the Petitioner. Yet the court stated that with regard to juror Peabody's experiment, "[H]owever, we do not know the extent of her experiment, nor with whom she discussed it."
Considering three separate home experiments and the consultation of law books by one juror, we conclude that the jury might have been influenced, notwithstanding the jurors' statements to the contrary. The jurors cannot in every case determine the question of whether they were, or might have been, improperly influenced.
In view of our decision, there is no need to reach the Batson v. Kentucky, ___ U.S. ___, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), issue. See Jackson v. State, [Ms. 84-1112, December 19, 1986] (Ala.1986).
*1265 The judgment of the Court of Criminal Appeals is therefore reversed and the cause is remanded.
REVERSED AND REMANDED.
All the Justices concur, except TORBERT, C.J., not sitting. | February 6, 1987 |
a510cded-d143-4da6-b13e-8c987179b0d2 | CSX Transp., Inc. v. Long | 703 So. 2d 892 | 1950835 | Alabama | Alabama Supreme Court | 703 So. 2d 892 (1996)
CSX TRANSPORTATION, INC.
v.
Thomas W. LONG.
1950835.
Supreme Court of Alabama.
December 13, 1996.
*893 Stephen A. Rowe, David B. Hall, and David W. Spurlock of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Michael D. Blalock of Blalock, Blalock & Oros, P.C., Birmingham, for appellee.
SHORES, Justice.
This is a negligence action involving hearing loss, brought under the Federal Employers Liability Act ("FELA"). The plaintiff, Thomas W. Long, sued CSX Transportation, Inc., alleging that he had suffered a hearing loss by being exposed at his workplace to various machines and train engines that emitted *894 noises exceeding the levels permitted by OSHA noise standards. The case was tried before a jury, which returned a verdict in favor of Long for $1,000,000 in compensatory damages. The trial court denied CSX's motion for a new trial or a remittitur and entered a judgment on the verdict. CSX appeals. We affirm conditionally.
Thomas W. Long has been employed by CSX since 1969, with duties that have included operating various types of track maintenance equipment and acting as a foreman of track maintenance crews. Since 1983, he has been employed in a management capacity. Long claims that during his career with CSX he has been exposed to various machines that have caused him to suffer a severe high frequency sensorineural hearing loss. He claims that since at least 1982 CSX has been aware of the excessive noise levels that its equipment created, but that CSX did not allow hearing protection for its employees until 1989. In fact, CSX's rule book specifically stated: "When on or about railroad tracks, nothing must be worn about the head or neck." In 1990, CSX first provided hearing protection devices and annual testing to monitor employee hearing.
The scope of appellate review in a FELA case, as that scope of review has been set out by the United States Supreme Court, is stated in CSX Transp., Inc. v. Maynard, 667 So. 2d 642 (Ala.1995):
667 So. 2d at 644.
CSX first contends that, as a matter of Federal law, Long did not comply with the three-year statute of limitations imposed by the FELA in 45 U.S.C. § 51 (1988). The statutory period of limitations begins to run "`when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known,'" Maynard, 667 So. 2d at 647, quoting Chatham v. CSX Trans., Inc., 613 So. 2d 341, 344 (Ala.1993) (quoting McCoy v. Union P.R.R., 102 Or.App. 620, 623-24, 796 P.2d 646, 648 (1990)) (citing DuBose v. Kansas City S. Ry., 729 F.2d 1026, 1030 (5th Cir.), cert. denied, 469 U.S. 854, 105 S. Ct. 179, 83 L. Ed. 2d 113 (1984)). Thus, a cause of action under the FELA arises when a claimant is, or reasonably should be, aware of his or her injury and knows, or in the exercise of reasonable diligence should know, of facts indicating that the injury is work-related. CSX v. Maynard, supra, citing Chatham v. CSX Trans., Inc., supra, at 344.
CSX contends that Long knew no later than March 9, 1989, that he was suffering some perceptible measure of hearing loss and that the loss was work-related. Long testified that he was seen on March 9, 1989 by Dr. Charles Gary Jackson. Dr. Jackson's staff did a hearing test that they did not show to him. They then scheduled Long for more tests with Ron Sheffey, an audiologist, for March 15, 1989. On direct-examination, Long testified:
Ron Sheffey told Long that he had a noiseinduced hearing loss, and Sheffy wrote on the bottom of Long's March 15, 1989, audiogram: "Bilateral high frequency sensorineural *895 hearing was most likely noise-induced." Long testified that this was the first time he was aware that he had a hearing injury and that the injury was most likely work-related.
The trial judge concluded that there was conflicting evidence as to when Long learned or should have learned that he had a work-related hearing loss. He charged the jury as follows:
In a FELA case, if conflicting evidence presents more than one evidentiary basis for a verdict, the jury is free to determine the evidence it considers the more credible and to base a verdict on that evidence. Brown v. Seaboard Coast Line R.R., 473 So. 2d 1022, 1025 (Ala.1985), citing Dennis v. Denver & R.G.W. R.R., 375 U.S. 208, 84 S. Ct. 291, 11 L. Ed. 2d 256 (1963). There was sufficient evidence to support the jury's conclusion that March 15, 1989, was the date on which Long first knew he had a noise-induced hearing loss.
CSX next contends that the trial judge erred to reversal by admitting opinion evidence from an expert witness based on hypothetical facts. The witness was Dr. Dennis Pappas, a medical doctor who specializes in ears otology and neurotology. CSX claims that the hypothetical facts were never put in evidence or otherwise substantiated during the trial. The plaintiff says there were actually two hypothetical questions posed to Dr. Pappas at his deposition and that both were supported by the evidence adduced at the trial:
The record reflects that Long had normal hearing when an audiogram was done in 1967, while he was in the Army. Long testified that he went to work on the railroad in 1969. He had various jobs, including jobs operating a hydrospiker machine, a tamper machine, a ballast regulator machine, a backhoe, and a burr crane machine. He testified that he worked from 7:00 a.m. in the morning until 4:00 p.m. in the afternoon, with a lunch break, spending an average of six to seven hours a day on the machines he operated. *896 When asked "which is the closest, six or seven?" Long responded, "I would say most of the time it would be closer to seven hours a day." Long then explained that he was part of a production gang which would have a "flagging order" for four to eight miles of track. The flagging order meant "when you got out there, nothing could come between in that between four miles and that eight miles [sic]. You were in there, that was yours, you worked." At one point, he operated a spike-driving machine. Long testified that while working on that machine he was looking directly into the back end of a three-cylinder diesel engine. At another point he operated a tie handler, which picks up crossties. Long testified that it was not uncommon to work around tie handler mufflers that were broken off down to the manifold. Long's co-worker Terry Kerry testified to this as well. Long also operated a tamper, which picks up the tracks, along with a ballast regulator, which puts the rocks or ballast under the tracks. The tamper and ballast regulation are part of the liner system that keeps the tracks straight. The tamper machine Long operated for seven years had a V-8 engine that had two big flywheels on each side, approximately 18 inches in diameter. Long testified that the flywheels caused a high-pitched hum that would "play with your ears making your ears have problems with them." Kerry, who has operated the same kind of machine, testified that the tamper machine "had a high-pitch ringing to it... and you could hear it all the time." The machine was operated with the doors and windows open. Long testified that there were times when they operated the machine eight hours straight, and that it was impossible to carry on a conversation because of the noise, even four or five feet away. The machines were not turned off, even when trains were being let through the portion of track on which the production gang was working. Leon Caffey, another co-worker, explained in his testimony that the machines are not allowed to idle, because the hydraulic systems of the machines are geared to work with the engines running "wide open." Kerry testified that the machines are operated wide open. Kerry described their riding on a work train to a jobsite. He described the sound of a train whistle or horn as "just deafening."
Long later became a foreman, but he testified that as a foreman he would frequently swap out with the machine operators, in order to give them a break. As foreman, he was around the machines the full time they were operating. From 1979 to 1983, he operated a backhoe, as well as other machines. In 1983 he was promoted to assistant road master, charged with inspecting the track and supervising the gangs as they worked on the rails. A typical day began in the office at 5:30 a.m., with a conference call for an hour and a half to two hours with the division engineer. The road master's office was situated between two road crossings. The windows of the office were approximately 20 feet from the track. On average, two or three trains would come by while he was there. These trains would start sounding their horns at one crossing and would continue to sound their horns until the front of the engine went through the last crossing on the other side of the office. Until 1990 the railroad did not permit Long to wear hearing protection.
Dr. Kent Oestenstad, an industrial hygienist and associate professor in the Department of Environmental Sciences at the University of Alabama at Birmingham, testified that he had analyzed 167 dosimeter test results made by the TechCon consulting firm for CSX and had compared the noise level findings to OSHA standards. Dr. Oestenstad found that a spike driver machine similar to the ones Long had operated gave an eight-hour timeweighted average noise exposure of 92.9 dba. This violated the OSHA maximum allowable eight-hour time-weighted average noise exposure of 90 dba. The regular ballast machines had a noise level of 96.2 to 96.6, which also violated OSHA standards. Dr. Oestenstad testified that it was his opinion that Long's 14 years of exposure to the continuous impact noise reported by TechCon for workers who performed track repairs is sufficient to cause noise-induced hearing loss.
Having reviewed the evidence adduced at the trial, we conclude that the facts assumed in the hypothetical questions were supported by the trial testimony.
CSX argues that Long failed to produce sufficient evidence that CSX had negligently caused him to suffer hearing loss. The standard for establishing liability in FELA cases was set forth in CSX Transp. v. Maynard, supra:
667 So. 2d at 644 (quoting Carlew v. Burlington N.R.R., 514 So. 2d 899, 901 (Ala.1987)).
The record reflects that Long presented sufficient evidence for the jury to reasonably infer that Long had sustained a hearing loss as a result of his years of exposure to the CSX train horns and machinery and that CSX had negligently failed to provide ear protection or warnings to its workers to avoid the noise exposure. Long and two co-workers who had worked with him gave testimony describing the nature and intensity of the noise experienced by Long. Dr. Kent Oestenstad gave testimony concerning the noise produced by the machines on which Long worked. He had conducted noise-level tests on machines similar to those that Long had worked on and obtained noiselevel readings specific to Long. Dr. Ostenstad's report of the noise-level readings gave the dba readings for all of the machines to which Long had been exposed during his work with the railroad.
Dr. Dennis Pappas testified by deposition that, based upon the audiogram his office staff took of Long's right ear on March 2, 1993, he could say with reasonable certainty that Long had a configuration that was typical of damage from noise. In the SRT (sound reception threshold test), in which words are spoken and the person being tested is asked to repeat the words he hears, Long could repeat correctly only 28% of the words spoken into his right ear. Dr. Pappas testified that a person hearing well should get a score near 100%. Dr. Pappas testified: "He [Long] hears 40%. He's lost he's missing 60%. In other words, if you give him 10 words, he only gets 4 of them. He's missing 6 words out of 10 in a sentence without a hearing aid." Since surgery for an acoustic neuroma in his left ear, Long has no hearing in that ear at all. He does not contend that this tumor was caused by environmental noise.
A jury could reasonably infer from the testimony of Long and his co-workers, from the expert testimony of Dr. Pappas and Dr. Oestenstad, from the evidence of Long's length of employment at CSX, and from the evidence regarding the noise generated by the kinds of machines Long operated without any hearing protection, that Long's hearing loss was caused by CSX's negligence. As this Court stated in Maynard, "If there is an evidentiary basis for the jury's verdict, this Court is not at liberty to draw a contrary conclusion. Lavender [v. Kurn], 327 U.S. 645, 66 S. Ct. 740 [90 L. Ed. 916 (1946)]." 667 So. 2d at 645.
CSX next contends that the trial court erred in instructing the jury that it could award the plaintiff monetary damages for loss of future earning capacity. While conceding that the "loss of future earning capacity" is a permissible category of compensatory damages in a FELA case, citing Sinclair v. Long Island R.R., 985 F.2d 74 (2d Cir.1993), CSX argues that the plaintiff failed to prove by substantial evidence both the existence of a loss and the extent of that loss. In Carnival Cruise Lines, Inc. v. Snoddy, 457 So. 2d 379, 382-83 (Ala.1984), this Court held that, "Except in extreme and obvious cases, some direct evidence of the existence and extent of impaired earning capacity is necessary as the foundation upon which the jury may make an informed assessment of damages." CSX argues that Long's case is not extreme and obvious. We disagree.
This Court has said, "A complaint alleging permanent injury is sufficient to imply impairment of earning capacity." CSX v. *898 Maynard, supra, at 647, quoting Bishop v. Poore, 475 So. 2d 486, 488 (Ala.1985), citing Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403 (1927). "As to impaired earning capacity, like mental and physical pain, mutilation, disfigurement, or loss of an organ, it is shown to be difficult to furnish a standard for measurement, and the amount is to be fixed by the jury in their fair and enlightened discretion." Illinois C.G.R.R. v. Russell, 551 So. 2d 960, 963 (Ala.1989), quoting Southern Ry. v. Stallings, 268 Ala. 463, 469-70, 107 So. 2d 873, 879 (1958).
The record is replete with evidence that would support logical inferences that Long could well lose future earnings as a result of his hearing loss, and the common knowledge of the jury would allow the jurors to draw those inferences in this case. Id. at 963. Long testified that his job at CSX is under constant review and that "there is no way" he could maintain his salary of $50,000 per year if he lost his CSX job. His education and prior work experience, coupled with his hearing loss, make him virtually unemployable in the open labor market. The trial court did not err in instructing the jury that it could award Long monetary damages for loss of future earning capacity.
CSX argues that the trial court should have ordered a remittitur, because under the FELA a plaintiff is not entitled to punitive damages. The plaintiff responds with the argument that the jury's general verdict for compensatory damages clearly falls within the range of compensatory damages for the type of permanent injury the plaintiff incurred.
The trial court properly instructed the jury that they could not award punitive damages:
The question of the extent of damages is one of fact for the jury:
Illinois C.G.R.R. v. Russell, 551 So. 2d 960, 963 (Ala.1989), quoting Louisville & N.R.R. v. Steel, 257 Ala. 474, 481, 59 So. 2d 664 (1952). "The general rule is that a jury verdict is presumed correct and will not be set aside on grounds of excessiveness or inadequacy unless the amount is so excessive or inadequate as to affirmatively indicate that the verdict was the result of passion, bias, prejudice, or improper motive. Spears v. Bishop, 339 So. 2d 75 (Ala.Civ.App.1976)." Brown v. Seaboard C.L.R.R., 473 So. 2d 1022, 1025 (Ala.1985).
We have carefully examined the record. CSX argues that it did not cause Long to totally lose his hearing in his left ear. Long had an acoustic neuroma in his left ear; the surgery to remove it caused him to lose all hearing in that ear. However, the tumor did not cause all of the hearing loss Long had experienced in his left ear before he had the surgery. That loss was caused by the noise exposure on his job.
There was testimony concerning the stress and problems caused by Long's hearing loss, both on the job and in his relationship within his family. Long testified to difficulty in hearing radio and telephone instructions on the job. He stated that he fears missing a communication and causing a problem, or at worst, a death. His job is always being reviewed by his supervisors. Co-worker Kerry testified about mistakes Long has made on the job because of his poor hearing.
Long testified that he does not watch television or go to the movies, because he cannot understand what is going on. He further testified that his wife has to act as an interpreter when he tries to talk with his two young daughters and that this creates a strain in his family. His wife also testified about the strain placed on the family by Long's hearing loss. Dr. Pappas stated that Long will continue to have difficulty hearing *899 the voices of females, because female voices tend to be of a higher frequency than male voices and noise-induced hearing loss is a loss of the ability to hear high-frequency sounds.
This Court, when it concludes that a judgment is excessive, has the authority under § 12-22-71, Ala.Code 1975, subject to certain state constitutional constraints, to determine the proper amount of a recovery and to affirm the judgment subject to the plaintiff's filing a remittitur of the amount in excess of the proper amount. Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1033 (Ala.1993). A jury verdict may not be set aside or a remittitur ordered unless the verdict is flawed and thus without constitutional protection. Id., citing Hammond v. City of Gadsden, 493 So. 2d 1374, 1378 (Ala.1986).
Although the plaintiff suffered a permanent hearing loss, he has been able to retain his employment. We have reviewed the verdicts of other hearing-loss cases involving railroad employees,[1] and we conclude that Long's compensatory damages award is excessive. We order a remittitur of the $1,000,000 in compensatory damages to $500,000.
The judgment is affirmed, conditioned upon the plaintiff's filing a remittitur, as indicated above. The plaintiff shall, within 30 days after the date of this opinion, file a remittitur, pursuant to § 12-22-71, Ala.Code 1975, reducing the total judgment to $500,000; otherwise, this judgment will stand reversed and the cause remanded for a new trial.
AFFIRMED CONDITIONALLY.[*]
MADDOX, ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur.
HOOPER, C.J., concurs in part and dissents in part.
HOOPER, Chief Justice (concurring in part and dissenting in part).
Although I agree that the judgment of the trial court should be affirmed, I would order a remittitur of the $1,000,000 compensatory damages awarded for Mr. Long's hearing loss to $250,000 instead of $500,000. Long's quality of life, both professionally and personally, has been lessened by the partial hearing loss, so some compensatory damages are appropriate. Even though Long had sustained some hearing loss before having an acoustic neuroma removed from his left ear, his loss of all hearing in that ear was a direct result of the removal of the acoustic neuroma, not the excessive noise he encountered at the CSX work site. After reviewing cases similar to this one, I conclude that a maximum award of $250,000, rather than $500,000, would be more consistent with the amounts awarded in those cases. See CSX Transp., Inc. v. Maynard, 667 So. 2d 642 (Ala.1995)(awarding $325,000 for hearing loss resulting from exposure to noise during employee's tenure with CSX); CSX Transp., Inc. v. Dansby, 659 So. 2d 35 (Ala.1995)(awarding $105,000 for hearing loss sustained after being overexposed to noise for 37 years during employment with CSX); CSX Transp., Inc. v. Bryant, 589 So. 2d 706 (Ala.1991)(awarding $25,000 for hearing loss due to 16 years of exposure to excessive noise). Thus, I think the $1,000,000 award is excessive and should be reduced to a figure not exceeding $250,000.
[1] CSX v. Maynard, supra (verdict of $325,000); CSX Transp., Inc. v. Dansby, 659 So. 2d 35 (Ala. 1995) (verdict of $105,000); CSX Transp., Inc. v. Bryant, 589 So. 2d 706 (Ala.1991) (verdict of $25,000).
[*] Note from the reporter of decisions: The Supreme Court's docket sheet indicates that on January 9, 1997, a "notice of filing for a remittitur" was filed in the trial court. | December 13, 1996 |
4e7bd22d-04ec-4aea-b73b-76236bc2c1ba | State Farm Mut. Auto. Ins. Co. v. Jeffers | 686 So. 2d 248 | 1951641 | Alabama | Alabama Supreme Court | 686 So. 2d 248 (1996)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Dorothy R. JEFFERS and Keith Jeffers.
1951641.
Supreme Court of Alabama.
December 13, 1996.
Joel W. Ramsey of Ramsey, Baxley & McDougle, Dothan, for Plaintiff.
Benjamin E. Meredith, Dothan, for Defendants.
MADDOX, Justice.
The United States District Court for the Middle District of Alabama has certified to this Court the following question:
The facts, as stipulated by the parties and submitted by the district court, are as follows:
We must determine whether, under § 32-7-23(b), Ala.Code 1975, an insured motorist can be deemed to be an "uninsured motorist" when the injured party's claim against the insured motorist is barred by the doctrine of substantive immunity. This appears to be a case of first impression before this Court.
The Jefferses contend that, under the holding in State Farm Automobile Insurance Co. v. Baldwin, 470 So. 2d 1230 (Ala.1985), they should be allowed to recover under their uninsured motorist coverage with State Farm. In Baldwin, this Court addressed the question "whether an insured, who is precluded because of governmental immunity from suing the owner or negligent operator of an uninsured motor vehicle, is nevertheless `legally entitled to recover damages' under the Alabama Uninsured Motorist Act." 470 So. 2d at 1231. The case involved a United States Army sergeant who was struck by an uninsured vehicle that was owned by the United States Government and that was being driven by a civilian Government employee. The sergeant's claim against the Government employee was barred by the doctrine of governmental immunity. This Court held that the sergeant was "legally entitled to recover damages" under his uninsured motorist coverage even though his claim against the negligent driver was barred by substantive immunity. The factor distinguishing this case from Baldwin is that in this case Deputy Anderson's vehicle was covered under an insurance policy.
State Farm contends that Deputy Anderson's automobile is not an "uninsured vehicle" within the meaning of the Act because the automobile was in fact covered under a liability policy. State Farm argues that the fact the Jefferses are barred from a recovery by the doctrine of substantive immunity should not affect the question whether Deputy Anderson's automobile is deemed to be an "uninsured vehicle" under the terms of the policy.
The question before us then is whether the Jefferses should be denied uninsured motorist benefits because Deputy Anderson's vehicle was in fact insured, even though the Jefferses cannot recover under the policy covering Deputy Anderson's vehicle because the insured under that policy is entitled to substantive immunity. To answer this question, we must examine the purpose behind the Uninsured Motorist Act, which this Court has held "is to provide coverage `for the protection of persons insured thereunder' against injury, including death, caused by the wrongful act of an uninsured motorist." Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 465, 282 So. 2d 301, 303 (1973). In State Farm Fire & Casualty Co. v. Lambert, 291 Ala. 645, 649, 285 So. 2d 917, *250 919 (1973), this Court stated that "[t]he design of the statute is to protect [an] injured [person] who can prove that the accident did in fact occur and that he was injured as a proximate result of the negligence of [another] motorist who cannot respond in damages for such injuries."
We conclude that the purpose of the Uninsured Motorist Act would be defeated if we did not hold, based on the facts and circumstances here presented, that Deputy Anderson was an "uninsured motorist." In the prior proceeding resulting in this Court's no-opinion affirmance in Jeffers v. Houston County Sheriff's Dep't, 668 So. 2d 576 (Ala. 1995) (table), it was held that if Deputy Anderson was negligent he could not legally be required to pay for the injuries inflicted on the Jefferses because he is protected by the doctrine of substantive immunity; consequently, the Jefferses cannot recover against Deputy Anderson or against USF & G, his automobile liability insurance carrier. Because of the application of the doctrine of substantive immunity, Deputy Anderson, in effect, was not insured. After considering the purpose of the Uninsured Motorist Act, we conclude that that purpose would be defeated if we held that Deputy Anderson's vehicle was not an "uninsured motor vehicle" under § 32-7-23, Ala.Code 1975.
CERTIFIED QUESTION ANSWERED.
HOOPER, C.J., and ALMON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
Was the vehicle that Deputy Sheriff Anderson was operating at the time of the accident made the basis of the underlying action an "uninsured motor vehicle"? No. It is stipulated that this vehicle was insured for bodily injury liability in an amount in excess of that required by the Alabama Motor Vehicle Safety Responsibility Act.
Alabama Acts 1965, Act No. 866; Section 32-7-23 (before it was amended in 1984); Ala. Acts 1984, Act No. 84-301; and § 32-7-23 as it read after amendment, all address "uninsured motor vehicles," not "uninsured motorist" (a term used by the Michie Company in its version of our Alabama Code of 1975 as a heading for § 32-7-23. That heading has no legal significance. See Ala.Code 1975, § 1-1-14).
The mere fact that a vehicle insured for bodily injury liability is operated by someone who is immune from liability while operating that vehicle cannot make the vehicle an "uninsured motor vehicle." The certified question in State Farm Automobile Insurance Co. v. Baldwin, 470 So. 2d 1230 (Ala. 1985), involved an uninsured motor vehicle. 470 So. 2d at 1231, 1234. The question presented in this case does not. | December 13, 1996 |
4972f8de-9354-4c83-b61d-a7108a3e9b5f | Taylor v. Kohler | 507 So. 2d 426 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 426 (1987)
Bobby R. TAYLOR and Carolyn Taylor
v.
Carl E. KOHLER and Phyllis M. Kohler.
85-1114.
Supreme Court of Alabama.
February 6, 1987.
Rehearing Denied May 1, 1987.
Kenneth T. Hemphill, Montgomery, for appellants.
William B. Reneau, Wetumpka, for appellees.
ADAMS, Justice.
Defendants, Bobby and Carolyn Taylor, appeal from the Elmore County Circuit Court's order reforming a deed and granting the requested injunctive relief. We affirm.
On February 14, 1977, Carl and Phyllis Kohler, plaintiffs below, deeded certain land to Julius and Deloma Price. This warranty deed, which was recorded in the office of the Judge of Probate of Elmore County, contained the following restriction: "This deed is made upon the condition that the property herein conveyed shall be used for permanent type residence purposes only." Due to an error in the description of the original deed, on December 20, 1977, a corrective deed was given from the Kohlers to the Prices. This corrective deed referred to the original deed and gave reference to its proper recording information; however, the corrective deed erroneously *427 omitted the restrictive covenant quoted above.
On August 22, 1978, the Prices deeded the property to the defendants, Bobby and Carolyn Taylor. The deed used by the Prices to convey the land to the Taylors, however, did not contain the restrictive covenant. Thereafter, the Taylors began making preparations to have ten mobile homes installed on the property. The Kohlers then filed suit and asked the Circuit Court of Elmore County to issue an injunction prohibiting the Taylors from continuing with their plans to install the mobile homes. In addition, plaintiffs requested that the court reform the corrective deed dated December 20, 1977, from them to the Prices, to include the erroneously omitted restrictive covenant. After the trial court issued its final decree granting the relief sought by the plaintiffs, the defendants appealed.
The issues presented for our review in this case are:
1. Did the trial court err in reforming the corrective deed to include the restrictive covenant?
2. Did the trial court err in granting the injunctive relief requested by plaintiffs?
Before addressing these issues, we note that this case was presented to the trial court sitting without a jury. We were presented a similar case in Curtis White Construction Co. v. Butts & Billingsley Construction Co., 473 So. 2d 1040 (Ala. 1985), where we stated:
473 So. 2d at 1041. Thus, if there was evidence produced in this case to support the trial court's judgment, then we are bound to affirm it.
With regard to the issue of whether the trial court erred in reforming the deed, the Taylors argue that in order for the court to reform a deed it must be proved through clear and convincing evidence that the intention in the sought reformation what the intention of both parties to the deed was, and they argue that a written instrument is not subject to reformation against the rights of a bona fide purchaser, without notice, and for value, citing Touchstone v. Peterson, 443 So. 2d 1219 (Ala. 1983). The Taylors assert that since they purchased the property for value and had no notice of the restrictive covenant, either actual or constructive, their deed cannot be reformed and the court committed error by doing so. The trial court, however, found that the Taylors had actual, as well as constructive, notice of the restrictive covenant in favor of permanent type residence structures. We agree.
First, with regard to actual notice, there was testimony adduced at trial that the Taylors were informed of the restriction on the property in two separate conversations that they had with the Prices. Thus, there was sufficient evidence produced at trial to support a finding of actual notice.
We are also of the opinion that sufficient evidence was produced to support a finding that the Taylors had constructive notice of the restriction. It is well settled in this jurisdiction that:
Leslie v. Click, 221 Ala. 163, 165, 128 So. 170, 172 (1930). Since the Prices told the Taylors about the restriction on at least *428 two separate occasions, it seems to us that this information would stimulate the Taylors to search the records of title, and, if they had, they would have discovered that the original deed from the Kohlers to the Prices contained such a restriction. Moreover, even though the Taylors did not search the record, they are charged with constructive notice of that which appears on the face of the conveyances in their chain of title. See Code of Alabama 1975, § 35-4-63; Jefferson County v. Mosley, 284 Ala. 593, 226 So. 2d 652 (1969). Thus, reformation was proper in this case, since the Taylors had notice of the restriction. See Touchstone v. Peterson, supra.
Authority for the trial court's reformation of the deed can also be found in Code of Alabama 1975, § 35-4-153:
It is clear from the testimony at trial that both sets of parties to the original deed, the Kohlers and the Prices, intended for the restriction to be effective. Furthermore, Mrs. Price testified that at the time she and her husband conveyed the property to the Taylors, it was her intention to leave the restriction in effect. She further testified that, since the Taylors were aware of the restriction, she did not feel that it was necessary to place the restriction on the face of the deed from the Prices to the Taylors. Because the Prices and the Kohlers were all of the opinion that the restriction was in effect, the court correctly reformed the deed to include the omitted restriction.
Next, the Taylors argue that the court erred when it granted the injunction in favor of the plaintiffs. The Taylors assert that the court cannot enjoin an action merely to allay apprehension of an injury, but that there must be proof that plaintiffs were in danger of irreparable injury. However, as this Court has stated:
Tubbs v. Brandon, 374 So. 2d 1358, 1361 (Ala.1979). The trial court was correct in granting the injunction, since evidence produced at trial showed that the Taylors were actively engaging in installing mobile homes upon the property, thereby violating the restrictive covenant.
For all of the above-stated reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | February 6, 1987 |
233feb54-566c-48e0-9a23-e590adf35f91 | Ex Parte Rudder | 507 So. 2d 411 | N/A | Alabama | Alabama Supreme Court | 507 So. 2d 411 (1987)
Ex parte Dr. William H. RUDDER.
(Re Dr. William H. RUDDER v. UNIVERSAL COMMUNICATIONS CORPORATION, etc., et al.)
85-871.
Supreme Court of Alabama.
January 16, 1987.
Rehearing Denied May 8, 1987.
*412 Joseph J. Boswell, Mobile, for petitioner.
Carroll H. Sullivan and John C. Dobbs of Hume & Sullivan, Mobile, for respondents.
SHORES, Justice.
This is a petition for writ of mandamus or, in the alternative, petition for writ of prohibition. The petition arises in the context of a defamation case in which Dr. William H. Rudder sued Universal Communications Corporation (owners of WALA-TV in Mobile) and Glenda Webb (an investigative reporter for WALA). Dr. Rudder, a Mobile psychiatrist, filed a libel and invasion of privacy lawsuit against WALA and Webb, based upon television broadcasts on February 13 and 14, 1984, that dealt with the subject of abusive prescriptive drug practices. Part of those broadcasts included reports on an investigation of Dr. Rudder and another Mobile physician, Dr. Socrates Rumpanos, by the Alabama State Board of Medical Examiners relative to their prescribing dexedrine to Mobile County District Attorney Chris Galanos. Dr. Rudder claims that these news stories defamed him and that his right of privacy was invaded, and he seeks $2 million in compensatory and punitive damages.
WALA and Webb filed a motion to have Dr. Rudder produce all of his medical or psychiatric records concerning the treatment of Galanos, including records relative to prescriptions he wrote for dexedrine for Galanos. Through his attorney, Galanos asserted his psychiatrist-client privilege under Code 1975, § 34-26-2. Galanos had previously made a limited waiver of this privilege during the investigation of Dr. Rudder by the Board of Medical Examiners. Under the Board's own rules and regulations, Dr. Rudder's records that were used in its investigation are privileged and confidential and unavailable to the public. Galanos is not a party to this suit. Dr. Rudder refuses to turn over his records to WALA and Webb.
The trial court overruled Dr. Rudder's objection to the request for production and denied his motion for a protective order. The trial judge ruled that the documents in question are relevant and material to the defendants' defense of truth, that the psychiatrist-patient privilege gives way to the right grounded in the First Amendment to the United States Constitution, and that Galanos had waived any privilege he may have had concerning these records when he allowed their production to the State Board of Medical Examiners without first applying to the circuit court for a protective order.
Dr. Rudder seeks a writ of mandamus directed to the trial judge commanding him *413 to vacate his order overruling Dr. Rudder's objection to defendants' request for production of documents and denying Dr. Rudder's motion for a protective order and commanding him to sustain Dr. Rudder's objection and grant his motion, or in the alternative, a writ of prohibition prohibiting him from overruling the objection and denying the motion. The documents in issue are Dr. Rudder's medical records pertaining to District Attorney Chris Galanos.
Petitioner Rudder contends that Galanos has not waived his privilege. We agree. Only the person entitled to claim an evidentiary privilege can waive that privilege by filing a lawsuit. See Mull v. String, 448 So. 2d 952 (Ala.1984). Galanos is not a party to the present lawsuit. Also, Galanos did not waive his privilege by consenting to Dr. Rudder's production of his medical records to the Board of Medical Examiners and testimony before the Board for the reason that the disclosures to the Board were themselves privileged and confidential communications. "Waiver does not result as to disclosures which are themselves privileged communications." Jones on Evidence, Vol. 3, § 21:2, at 747 (6th ed. 1972).
Having determined that Galanos has not waived his privilege, we now must decide whether, under the facts of this case, the privilege should be recognized or disregarded.
Section 34-26-2, Ala.Code 1975, entitled Confidential relations and communications between licensed psychologists and psychiatrists and their clients, provides:
It is not disputed that the medical records, created during the psychiatrist-patient relationship, are included in the confidential relationship and are also privileged. See Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973); 10 A.L.R.4th 552 Physician-Patient Privilege as Extending to Patient's Medical or Hospital Records (1981).
Statutes such as § 34-26-2 are intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and are thus designed to promote the efficacy of the physician's advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community. See 81 Am.Jur.2d Witnesses § 231 at 262 (1976); Annot., 44 A.L.R.3d 24 Privilege, in Judicial or Quasi-judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient (1972).
Taylor v. United States, 222 F.2d 398, 401 (D.C.Cir.1955), quoting Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.
The Alabama Rules of Civil Procedure recognize the importance of preserving confidential relationships and confidential information arising therefrom, by providing that privileged matters are not subject to discovery:
McCormick on Evidence, § 72 at 171 (1984), notes that evidentiary privileges do not aid in the ascertainment of truth, but are justified because they protect interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.
We also recognize that the discovery rules are to be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So. 2d 210 (1975), citing Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). This broad and liberal construction is intended to promote the philosophy of the rules, "which is to permit full discovery so as to save time, effort, and money and to expedite the trial and with a view of achieving justice for each litigant." Van Buren v. Dendy, 440 So. 2d 1012, 1014 (Ala.1983). "Modern instruments of discovery serve a useful purpose.... They together with pretrial procedures make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.... Only strong public policies weigh against disclosure." United States v. Procter & Gamble Co., 356 U.S. 677, at 682-83, 78 S. Ct. 983, at 986, 2 L. Ed. 2d 1077 (1958). Thus, at issue in the present case are two competing interests: the public's interest in protecting the psychiatrist-patient privilege and the interest in not handicapping defendants in defamation cases in discovery efforts in order to prepare their defense.
As recognized in Rule 26(b)(1), supra, and in Rule 26(c), the right of discovery is not unlimited, and the trial court has the power to prevent its abuse by any party. Van Buren v. Dendy, citing Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala. 1978).
A.R.Civ.P., Rule 26(c).
Our research did not reveal the existence of any case raising the precise issue now before uswhether a news media defendant, in defense of an action for defamation brought by a psychiatrist (or other physician), has a right to discover that doctor's privileged medical records pertaining to one of his patients. Chronicle Publishing Co. v. Superior Court, 54 Cal. 2d 548, 7 Cal. Rptr. 109, 354 P.2d 637 (1960), is, however, a somewhat analogous case.
In that case, an attorney brought an action against the defendant newspaper for libel based on an article it published which plaintiff claimed injured him in his professional reputation. The attorney contended that his professional reputation was good and that he had never been guilty of any misconduct. The newspaper sought discovery from the State Bar to ascertain if complaints, not resulting in any private or public discipline, had ever been filed, and whether any investigations of the plaintiff had ever taken place. The State Bar sought an order limiting discovery by excluding inquiry into information contained in the confidential files of the State Bar. It was urged that the matters sought to be excluded were privileged and that the public interest would suffer by disclosure.
The trial court granted the motion for a protective order. On petition for mandamus brought by the newspaper, the California Supreme Court held that the information sought by the defendant newspaper was relevant but privileged, as provided by California statute. The court cited a discovery statute similar to Alabama's Rule *415 26(b), supra, prohibiting discovery of privileged matters. The State Bar argued that the free communication of information on a privileged, confidential basis was necessary for the proper functioning of the disciplinary procedures. The Supreme Court agreed, stating that "in the case of complaints against members of the State Bar, it is essential to secure all possible information bearing thereon, and necessarily much of the information can only be had upon the understanding that the informant and the information will be treated as confidential." Chronicle Publishing Co. v. Superior Court, 54 Cal. 2d at 559, 7 Cal. Rptr. at 120, 354 P.2d at 648. In upholding the trial court's protective order, the Court said: "In the interest of the public, the State Bar's need for secrecy outweighs the litigant's need for information." Chronicle Publishing Co., supra, 54 Cal. 2d at 562, 7 Cal. Rptr. at 123, 354 P.2d at 651.
The public interest is served by encouraging individuals to seek help and treatment for both mental and physical illness. Without the assurance of confidentiality, many individuals would resist seeking help, fearing the potentially humiliating and embarrassing exposure of their private lives. We recognize that both interests are importantthe interest in preserving the psychiatrist-patient privilege and the interest in promoting full and thorough discovery. Under the facts of the instant case, the latter must yield to the former.
Defendants WALA and Webb argue that a third and paramount interest is involvedthe right to free expression guaranteed by the First Amendment. The trial court agreed with defendants and denied Dr. Rudder's motion for protective order. The trial court held that "the psychiatrist-patient privilege gives way to the right grounded in the First Amendment to the United States Constitution." Defendants specifically contend that the First Amendment to the United States Constitution "grants a privilege to the media as a defense to libel actions of this sort," citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Furthermore, they argue that if they "are prohibited from getting Dr. Rudder's records concerning Mr. Galanos, then the privilege predicated upon the United States Constitution is completely emasculated." Under the facts of the present case, we disagree. First, a brief review of Hepps, Gertz, and Sullivan, is in order.
The constitutional protection against liability for defamation enunciated in Gertz and Sullivan can be stated as follows: Where a plaintiff is a public official or a public figure, the media defendant will escape liability unless the plaintiff proves publication of defamatory falsehood with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. Gertz held that private individuals were not required to show "actual malice" in a libel suit against the media, and that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."[1] 418 U.S. at 347, 94 S. Ct. at 3010. The recent United States Supreme Court opinion in Hepps holds that a private figure plaintiff who seeks to recover damages against a media defendant for defamatory speech on a matter of public concern must also show that the statements at issue are false. The Court held that "the common law's rule on falsitythat the defendant must bear the burden of proving truth must similarly fall here to a constitutional *416 requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." 475 U.S. at ___, 106 S. Ct. at 1563.
We recognize that the courts of this State are bound by the constitutional principles enunciated in these Supreme Court cases. In actions for defamation, there must be an initial determination by the trial judge in regard to the status of the allegedly defamed person as a public official, a public figure, or a private individual. Fulton v. Advertiser Co., 388 So. 2d 533 (Ala.1980), cert. denied, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981). Furthermore, where it is determined that a private individual is alleging defamation, there must be a determination of whether the defamatory speech involves a matter of public concern. Philadelphia Newspapers, Inc. v. Hepps, supra. These determinations are questions of law for the trial judge. Fulton. These issues must be resolved first, because the manner of their resolution determines what elements of proof are necessary for recovery. Mobile Press Register, Inc. v. Faulkner, 372 So. 2d 1282 (Ala.1979), citing New York Times Co. v. Sullivan, supra.
Each of these cases from the United States Supreme Court speaks to the burden of proof in defamation cases. None of them extends to the media a constitutional right to information not otherwise available to others. Although one hears assertions of the "media's right to know," we have found no reference to a constitutional "right to know" in any decision of the Supreme Court of the United States. One state court has had occasion to address this point. The Supreme Court of Washington in Rhinehart v. Seattle Times Co., 98 Wash. 2d 226, 654 P.2d 673 (1982), affirmed, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984), is instructive. That case involved a suit for defamation and invasion of privacy against a defendant newspaper. The newspaper challenged the trial court's granting of a protective order, sought by the plaintiff, on First Amendment grounds. The Supreme Court of Washington, in affirming the protective order against a charge that it violated the First and Fourteenth Amendments, stated:
Rhinehart v. Seattle Times Co., 98 Wash. 2d at 229-30, 654 P.2d at 676.
While freedom of the press must be strongly defended, it does not include access to information not generally available to members of the public. See Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 2810, 41 L. Ed. 2d 495 (1974). Information recognized as privileged is not available to the public. As previously discussed, there is an important societal interest in preserving the confidentiality of the psychiatrist-patient relationship. There may be instances where the media defendant would be allowed to discover privileged communications, but that case is not now before us.
We recognize the dilemma which WALA and Webb anticipate. The plaintiff will testify that the publication by them was false and they will be called upon to produce evidence to the contrarythe best of *417 which is in the plaintiff's possession under a claim of physician/patient privilege. However, for the present, WALA and Webb have failed to show that any constitutional right has been violated by the retention of the privilege legislatively extended to Galanos's medical records, and they have also failed to demonstrate that they would be unduly handicapped in defending this lawsuit. To the contrary, representatives of WALA repeatedly stated that the broadcasts in issue were "backed up by facts," that "we made clear that everything we said was factual," and that "all the claims [made by WALA-TV] were substantiated with facts." Thus, defendants have acknowledged that they have other non-privileged evidence available to them to defend against Dr. Rudder's allegations.
The protection of a patient's and society's interest in preserving the confidentiality of the psychiatrist-patient relationship is of sufficient importance to generally warrant exclusion from discovery. However, this psychiatrist-patient privilege may not in all cases be an impenetrable shield. See, e.g., D. v. D., 108 N.J.Super. 149, 260 A.2d 255 (1969), where the court observed that when the custody of children was at issue, the welfare of the children was paramount to the rights of the parents to invoke a statutory privilege against the admission of psychotherapist-patient communications.
From the record before us, we cannot ascertain whether the trial court has determined that Dr. Rudder is a private or a public figure under Fulton, supra. Until it does so, we cannot state what elements of proof are necessary for his recovery, as delineated by Hepps, Gertz, and Sullivan. WALA and Webb contend that, assuming Dr. Rudder is a private individual (without conceding that he is), the broadcasts in issue were of public concern; if so, this fact, in accordance with Hepps, would cast on Dr. Rudder the burden of proving that the publications were false. We agree that the subject of the broadcasts is of public concern; therefore, Dr. Rudder's burden of proof is a heavy one, and it is one he must bear without the use of the medical records, because the privilege prevents him too from utilizing them.
The petition for writ of mandamus is granted, and the trial court is ordered to grant Dr. Rudder's motion for a protective order.
WRIT GRANTED.
MADDOX, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and HOUSTON and STEAGALL, JJ., dissent.
TORBERT, Chief Justice (dissenting).
I must respectfully dissent. The defendants' First Amendment rights of freedom of speech and freedom of the press do conflict with the psychiatrist-patient privilege in this case, and I would hold that the defendants' constitutional rights outweigh this statutory privilege.
As the United States Supreme Court stated in Connick v. Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 1689, 75 L. Ed. 2d 708 (1983):
Speech of public concern is at the core of the First Amendment's protection and it is *418 speech that "matters." See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, ____, 106 S. Ct. 1558, 1565, 89 L. Ed. 2d 783 (1986).
The majority states, "Each of these cases from the United States Supreme Court speaks to the burden of proof in defamation cases. None of them extends to the media a constitutional right to information not otherwise available to others." This is true; however, the psychiatrist-patient privilege in this case impacts directly on the substantive area of liability for defamation. "[T]o refuse evidence is to refuse to hear the cause." Edmund Burke, quoted in I Wigmore, Evidence § 10, at 672 (Tillers rev. 1983). "Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039 (1974).
In this case, the evidence that is sought by the defendants goes directly to the burden of proof. This evidence has direct bearing on the truth or falsity of the defendants' statements. This is not merely a discovery matter; the evidence sought here goes to the very substance of plaintiff's case and of the defendants' defense.
Code 1975, § 34-26-2, states that confidential relations and communications between a psychiatrist and client "are placed upon the same basis as those provided by law between attorney and client." In speaking of the attorney-client privilege, this Court has held that there are limitations on the application of the rule of privileged communications. Ex parte Griffith, 278 Ala. 344, 350, 178 So. 2d 169, 176 (1965), cert denied, 382 U.S. 988, 86 S. Ct. 548, 15 L. Ed. 2d 475 (1966). So too, there are limitations on the psychiatrist-patient privilege. It is not an absolute privilege; it is a limited, evidentiary privilege that was created to protect and encourage confidential communications between a psychiatrist and patient by preventing the psychiatrist from making that information public. This exclusion of evidence is an expression of public policy. See generally 81 Am.Jur.2d, Witnesses, § 231 (1976). However, that expression of public policy must yield when it comes into conflict with a higher expression of public policy; namely the United States Constitution.
Commentators have noted that a limited, evidentiary privilege should give way to any higher, necessary demands of justice. See McCormick on Evidence, §§ 77, 87 (3d ed. 1984); Comment, The Attorney-Client Privilege in Alabama, 28 Ala.L.Rev. 641, 675 (1977). "Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances." Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 1648, 60 L. Ed. 2d 115 (1979).
The majority recognizes that "There may be instances where the media defendant would be allowed to discover privileged communications, but that case is not now before us." Since the majority is denying the defendants access to the determinative evidence on a determinative substantive issue, I cannot imagine what "instances" would allow the media defendant to discover a third party's privileged communications in a defamation case. If this is not the case, then there will probably never be one. For all practical purposes, the majority has made the psychiatrist-patient privilege absolute under these circumstances. This Court has stated that the rule of privilege is defensive, not offensive. Ex parte Griffith, supra, 278 Ala. at 351, 178 So. 2d at 176. Petitioner is attempting to use his client's shield as a sword against the defendants. When it strikes against the defendants' First Amendment shield, that sword must shatter.
The United States Supreme Court has held that evidentiary privileges must give way when they come into conflict with constitutional rights. In Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the Supreme Court held that the confidentiality of a juvenile's record of delinquency is an important interest but that the Sixth Amendment's right of confrontation is paramount to the policy of protecting a juvenile offender. "The State's policy interest in protecting the confidentiality *419 of a juvenile offender's record cannot require [the] yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Davis, 415 U.S. at 320, 94 S. Ct. at 1112. The dissent in Davis stated, "[T]here is no constitutional principle at stake here. This is nothing more than a typical instance of a trial court exercising its discretion to control or limit cross-examination." 415 U.S. at 321, 94 S. Ct. at 1112 (White, J., dissenting). Similarly, in the present case, the majority has treated this as nothing more than a discovery issue and has ignored the substantive impact this discovery issue will have on the defendants' First Amendment rights.
In Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979), the United States Supreme Court, relying on Davis v. Alaska, held that the confidentiality of a juvenile offender's records must yield to a media defendant's First Amendment rights. Both Davis and Smith dealt with a third party's privilege, and that privilege had to yield when it came into conflict with a constitutional right.
A witness's confidential psychiatric records were ordered disclosed when that person's privacy interest came into conflict with a defendant's right to cross-examine, in United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983).
698 F.2d at 1167.
The Eleventh Circuit Court of Appeals in Lindstrom relied upon Davis v. Alaska.
First Amendment rights prevail over evidentiary privileges as much as Sixth Amendment rights do. "The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment." Smith v. Daily Mail Publishing Co., 443 U.S. at 104, 99 S. Ct. at 2671.
The majority relies on Rhinehart v. Seattle Times Co., 98 Wash. 2d 226, 654 P.2d 673 (1982), affirmed, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984), for the proposition that the media receive no greater constitutional protections than the general public. The majority ignores the fact that the Washington Supreme Court allowed the media defendants there to discover the privileged information of third parties in a defamation suit:
98 Wash. 2d at 257-58, 654 P.2d at 690-91.
Even without discussing the defendants' First Amendment rights, the Washington Supreme Court held that the privileged information was discoverable.
Chronicle Publishing Co. v. Superior Court, 54 Cal. 2d 548, 7 Cal. Rptr. 109, 354 P.2d 637 (1960), is also no help to the majority. Chronicle Publishing Co. was decided in 1960, well before the current First Amendment analysis was developed by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and the cases that followed and built upon *420 New York Times. No First Amendment right was ever raised by the defendant in Chronicle Publishing Co.
This case appears to present a question of first impression, not only for this Court, but for every jurisdiction in the country. I do not believe that this case can be disposed of as simply a discovery matter, especially in light of the fact that speech on public issues is the highest of First Amendment values and is entitled to special protection. Connick v. Myers, supra. Perhaps the United States Supreme Court will have to resolve this unique issue. It is my opinion that the psychiatrist-patient privilege of § 34-26-2 does impinge upon the defendants' First Amendment rights in this case, and, therefore, I would deny Dr. Rudder's petition for writ of mandamus.
HOUSTON and STEAGALL, JJ., concur.
[1] See Fulton v. Advertiser Co., 388 So. 2d 533 (Ala.1980), cert. denied, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981), where this Court held that a private individual must prove "traditional malice," as distinguished from the Sullivan, "actual malice," in a libel suit against a media defendant. Traditional malice "may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like ... or by the violence of the defendant's language, the mode and extent of publication, and the like." Fulton, 388 So. 2d at 538, quoting Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923). | January 16, 1987 |
c27783a2-e28d-4130-b5ac-0d8b95d19d48 | Hill v. Talladega College | 502 So. 2d 735 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 735 (1987)
Linda HILL
v.
TALLADEGA COLLEGE and Paul B. Mohr, Sr., individually and in his capacity as President of Talladega College.
Belinda G. HEGLAR
v.
TALLADEGA COLLEGE and Paul B. Mohr, Sr., individually and in his capacity as President of Talladega College.
Howard L. ROGERS
v.
TALLADEGA COLLEGE and Paul B. Mohr, Sr., individually and in his capacity as President of Talladega College.
85-785 to 85-787.
Supreme Court of Alabama.
January 30, 1987.
*736 William M. Dawson and Kimberly R. West of Parker & Dawson, Birmingham, for appellants.
Thomas Reuben Bell of Bell and Landers, Sylacauga, for appellee.
TORBERT, Chief Justice.
Linda Hill, Belinda G. Heglar, and Howard L. Rogers were employed as teachers at Talladega College, a private institution, under employment contracts with a term of one year, extending from August 1984 to August 1985. In May 1985, they received letters terminating their employment with the college. The letter to Hill is typical of these letters:
"Attached, you will find procedures for your clearance, if you have not already completed the process.
Shortly after receiving these letters, the teachers filed separate suits against the college and its president, Paul B. Mohr, Sr., alleging a breach of their employment contracts and wrongful termination. The court granted summary judgment for the defendants in each case, and the plaintiffs appealed. We have consolidated these three cases for the purpose of writing one opinion. We affirm the judgment of the trial court in each of these cases.
The primary issues raised by the plaintiffs on this appeal all concern the effect to be given the Procedural Standards in Faculty Dismissal Proceedings promulgated by the American Association of University Professors (AAUP). These standards establish relatively elaborate procedural safeguards that must be followed before a professor can be fired. These procedures are to be followed "[w]hen reason arises to question the fitness of a college or university faculty member who has tenure or whose term appointment has not expired...."
The plaintiffs argue that these standards were incorporated within their employment contracts and that the college's failure to follow these procedures gives rise to a claim for breach of contract and wrongful termination. In essence, the plaintiffs assert that the standards apply to their cases because the standards, by their terms, apply to any non-tenured teacher "whose term appointment has not expired." In view of the fact that the receipt of their termination letters preceded their contracts' August expiration dates, the plaintiffs insist that a genuine issue of material fact was established in support of their cases, precluding the trial court's grant of summary judgment in favor of the defendants.
The AAUP standards are neither expressly a part of, nor referenced in, the plaintiffs' written contracts of employment. However, the plaintiffs argue that references to these standards in a faculty handbook and other college documents operate to incorporate the AAUP guidelines within their formal contracts of employment. We need not consider here, however, the plaintiffs' many arguments in support of this theory. Like the trial court, we feel that these standards are inapplicable to the facts of this case, even if the standards were incorporated within the contracts at issue. Assuming, therefore, but not deciding, that the AAUP standards are a part of the plaintiffs' contracts, we will proceed with our analysis of this case.
Initially, we note that our review of a trial court's ruling on a motion for summary judgment is limited to the same factors that were considered by the trial court in making its decision. Lowe v. East End Memorial Hospital & Health Centers, 477 So. 2d 339 (Ala.1985). Our reasoning, however, is not limited to that applied by the trial court. "[T]he judgment of the trial court will be upheld if the court's holding is correct, despite the fact that our reasons are different from those stated by the trial court." Id. at 341. Accordingly, we will turn to the materials that were before the trial court when it ruled on the motions and to the precedent and rules of law that we hold applicable to this case.
It is well established that "[s]ummary judgment is appropriate in a breach of contract action where the contract is unambiguous and the facts undisputed." P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928, 931-32 (Ala. 1985).
Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025, 1028 (Ala.1983); P & S Business, Inc., 466 So. 2d at 932.
We hold that the contracts in these cases, including the AAUP standards "incorporated" therein for the purposes of this decision, are unambiguous as a matter of law. Specifically, it is clear from the title of the standards and the language contained in their provisions that the standards apply only to dismissals of college or university faculty members. Moreover, we think it self-evident that the ordinary meaning of the word "dismissal" forecloses the application of these standards to this case, as the following discussion will show.
By definition, tenured faculty are entitled to continuing employment, and a "dismissal" obviously takes place whenever tenured teachers are fired. On the other hand, the nature of a term contract is far different. Such a contract will by definition lapse at the completion of the time for performance, and the teacher serving under such a contract generally has no legally enforceable entitlement to continued employment beyond the contract's stated term. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Assuming that all obligations under such a contract are performed, the parties cannot be said to have been "dismissed" when their respective performances have been completed. The contract simply matures and dies, and the parties are then free to do as they please. The only time a party may properly be said to have been "dismissed" under a term contract is when that contract is cancelled before its stated termination date. Only in that situation are the contractual expectations of the parties disturbed.
Therefore, we think it clear in both logic and law that the AAUP dismissal standards apply to term contracts only when the "dismissal" represents an attempt to cancel an established, ongoing contractual relationship. We think that is the plain meaning of the statement that the standards will apply to a faculty member "whose term appointment has not expired." If the obligations under the term appointment are fulfilled, then the standards are not implicated. Each party has gotten what he bargained for, and neither has "dismissed" the other.
There is no genuine issue of material fact as to whether the plaintiffs were "dismissed" in this case. They were not. While the plaintiffs refer repeatedly in their brief to their May "terminations" and treat these letters as though they cancelled the existing contracts, the evidence presented to the trial court is to the contrary. The affidavits of Paul B. Mohr, the president of the college, unequivocally state that each of the plaintiffs was paid in full for his or her services under the contracts, and Mohr further characterizes each of these letters as a "notice of non-renewal." In short, it appears from Mohr's affidavits that the effect of the letters was to inform the plaintiffs that they would not be re-hired for the next academic year, and not that the plaintiffs were "dismissed" from the existing contracts. Additional documents and affidavits characterizing the college's actions as giving notice of non-renewal also appear in the record. Moreover, none of the plaintiffs' answering affidavits denies or contradicts either Mohr's statements or this other evidence in this regard.
In summary, we find that the AAUP standards are unambiguous as a matter of law; that they apply only to "dismissals," as that word is commonly applied; and that no such "dismissal" occurred in this case. Rather than being "dismissed," the plaintiffs were instead given notice of non-renewal *739 of their term contracts. Therefore, there appears to be no genuine issue of material fact regarding this issue, and the plaintiffs could not recover on their complaint as a matter of law. The "contracts" the plaintiffs so vigorously champion have not been breached on the instant facts.
We also note that the facts of this case are strikingly similar to those in Gowens v. Cherokee County Bd. of Educ., 348 So. 2d 441 (Ala.1977). Gowens involved a high school coach who was also employed under a non-tenured term appointment. After he was given notice of non-renewal, he attempted to invoke the provisions of local regulations setting forth procedures to be followed in the event of dismissal proceedings. There we held:
Id. at 442 (emphasis added). Based on Gowens and the analysis set forth above, we find no error in the trial court's decision on this issue.
Plaintiff Rogers also contends on this appeal that he is a tenured faculty member. Thus, he claims he is entitled to the AAUP dismissal procedures on this ground as well as those advanced above. Rogers claims that, although he was not the recipient of "formal" tenure, he had achieved "de facto" tenured status, largely as a result of his being employed for 10 years at the college and his reliance on an additional group of AAUP standards.
The faculty handbook noted earlier also states that the college's tenure policies would conform with a provision of the Principles of Academic Freedom and Tenure of the AAUP. This provision, as reproduced in the faculty handbook, provides that
Rogers argues that this provision was also incorporated within his contract. Therefore, he asserts that his employment for over ten years establishes a genuine issue of material factwhether he had de facto tenureand he argues that the trial court erred in granting summary judgment on this issue. We disagree.
We note initially that the AAUP standard at issue here is not absolute on its face. It does not unequivocally state that tenure shall be granted after seven years of employment; rather, it states that tenure should be granted after seven years, and it later refers to seven years as the "normal" maximum probationary period. Therefore, we are not convinced that this statement alone would create an expectation that tenure would be granted after seven years of service.
Moreover, unlike that portion of the faculty handbook which arguably incorporates intact the AAUP dismissal standards, that portion of the handbook noting the tenure provision promulgated by the AAUP contains additional and unambiguous limiting language. Two caveats appear on the same page with the cited reference:
As noted previously, summary judgment is proper where the contract is unambiguous and the facts are not in dispute. Assuming, without deciding, that this additional AAUP standard was also incorporated into the plaintiff's contract, we hold that the proposed contract unambiguously provides that such tenure could be granted only by specific action on the part of the Board of Trustees, and that the "seven year" provision is, by its terms, a non-mandatory provision, especially as limited by the subsequent caveat. Thus, no "de facto" tenure as such could arise under the terms of this "contract."[1] The trial court was therefore correct in granting summary judgment against Rogers, there being no evidence before it of any specific action with respect to Rogers's tenured status on the part of the Board of Trustees.[2]
We think the above discussion resolves the issues relating to the plaintiffs' contract claims. Of necessity, it also disposes of their claims for wrongful termination. If there was no breach of the underlying contracts, then no "terminations" occurred, and, thus, no causes of action for "wrongful termination" arose. The trial court, therefore, was not in error in granting summary judgment on these claims.
Likewise, the plaintiffs' argument that President Mohr acted in his individual capacity, and not as an agent of the college, is also foreclosed by the above analysis. If no cause of action arose on the facts set forth in the court below, then Mohr's personal liability is not an issue. The trial court, therefore, did not err in granting summary judgment in favor of Mohr.
We have carefully considered the other arguments and issues advanced by the plaintiffs, and we find that they are either without merit or are resolved by the discussion set forth above.
For the foregoing reasons, we affirm the three judgments of the trial court.
AFFIRMED.
MADDOX, JONES, SHORES and STEAGALL, JJ., concur.
[1] We think the facts of this case are distinguishable from those of Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). In Perry, the plaintiff had taught for ten years in the Texas state college system before his dismissal. He subsequently sued, alleging that he had achieved tenure under a de facto tenure program fostered by the last college at which he taught. In particular, he relied on college documents stating that, while there was no formal tenure system at his college, it was the college's intent to confer "permanent tenure as long as his teaching services [were] satisfactory." Id. at 600, 92 S. Ct. at 2699. He also relied on a tenure statement of his state university system which appears to adopt in large part the AAUP tenure standard noted above. Significantly, however, the tenure statement relied on in Perry provided that "the probationary period for a faculty member shall not exceed seven years." Id. at 600 n. 6, 92 S. Ct. at 2699 n. 6 (emphasis added). The United States Supreme Court held that the plaintiff had sufficiently alleged the existence of de facto tenure and hence a legally cognizable property interest to foreclose summary judgment denying his procedural due process claim.
In the instant case, we think the non-mandatory nature of the AAUP standard at issue, the existence of a formal tenure system, and the unambiguous limiting language in the "incorporated" college documents render inapposite the application of Perry to these facts.
[2] Rogers does allege that the Board of Trustees adopted or followed unspecified "AAUP guidelines" in 1977. We note, however, that Rogers's affidavit discloses no specific Board action with regard to his status. Moreover, we believe that his affidavit in regard to the Board's action does not conform with the Rule 56(e), A.R.Civ.P., requirement that specific facts be alleged which show that there exists a genuine issue for trial. Thus, the trial court could not be put into error for failing to give weight to this aspect of Rogers's affidavit. | January 30, 1987 |
9ba96844-8250-4862-8368-587caad12d2f | Filer v. Filer | 502 So. 2d 698 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 698 (1987)
Betty M. FILER
v.
Alvin V. FILER, Jr.
85-177.
Supreme Court of Alabama.
January 16, 1987.
Billy L. Elliott, Birmingham, for appellant.
Douglas L. McWhorter and J. Gary Pate of Najjar, Denaburg, Meyerson, Zarzaur, Max & Boyd, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal by Betty M. Filer of an order of the Jefferson County Circuit Court approving the sale of a residence. By their divorce decree of April 22, 1982, the Filers' *699 residence was to be listed for sale immediately and the proceeds from the sale were to be divided equally. The house remained unsold and Mr. Filer brought this suit in May 1984 to compel the sale of the residence. The court found that Mrs. Filer had intentionally obstructed attempts to sell the house and entered judgment for Mr. Filer. When the house remained unsold, the court granted Mr. Filer's motion for sale. The house was sold at auction and the sale price of $121,000.00 was approved by the court, thus prompting Mrs. Filer's appeal. We affirm.
A chronology of the facts of the case is worth noting. The Filers' divorce judgment specifically provided, in part, the following:
Within three months of the divorce, Mr. Filer petitioned the court for a rule nisi, after Mrs. Filer had refused to accept an offer to buy the house, and also asked the court to modify the decree to reduce his alimony and child support obligations. The court found, on September 8, 1982, that Mrs. Filer was not in contempt of court as to her rejection of the offer to buy the house, but granted Mr. Filer's request to reduce alimony and child support payments.
In November 1983, in response to Mrs. Filer's petition to modify the divorce decree to increase alimony and child support, Mr. Filer answered and cross-petitioned, alleging that Mrs. Filer was frustrating attempts to sell the house. This litigation culminated in the court's ordering that alimony and child support be temporarily increased to compensate for Mrs. Filer's loss of her job and ordering that Mrs. Filer thoroughly clean the house and, if necessary, permit replacement of the kitchen flooring. It then dismissed Mr. Filer's cross-petition without prejudice on February 24, 1984.
By May 1984, the house was still unsold, and Mr. Filer brought the present suit. Testimony revealed that six realtors had contracted to sell the house from May 1982 until this suit was filed; a seventh realtor declined to accept the listing. Based upon Mrs. Filer's testimony, the court found that her desire not to sell the house was manifested by her intentional discouragement of its sale. Testimony revealed that the house was not kept clean or made presentable at times when prospective buyers were shown the property. In its April 12, 1985, judgment, the court found that "various realtors have made suggestions as to steps which could be taken in order to make the property more presentable or salable." Mr. Filer, the court ordered, should be allowed
When the house remained unsold by the date designated as the deadline for its sale, the court, on July 2, 1985, granted Mr. Filer's motion for sale. Mrs. Filer's attorney was allowed to withdraw from the case after advising the court that he was unable "to communicate properly with the Defendant [Mrs. Filer]." After proper notice of sale had been given, the house was sold at auction for $121,000.00. Mrs. Filer's new attorney filed exceptions and objections to the register's report of sale, which were denied, and the sale price was approved November 13, 1985. The appellant's present counsel is the third attorney to represent her in this action.
Mrs. Filer views the April 12, 1985 judgment as a collateral attack on the 1982 divorce decree. She maintains that this suit, which resulted in the order to sell the house and its sale at auction, is an improper interpretation, modification and attack on a non-modifiable property division incorporated in the divorce judgment. If the purpose of the second suit was the enforcement of the divorce judgment regarding the sale of the house, Mrs. Filer argues, the court orders of September 8, 1982, and February 24, 1984, are res judicata on the issue, and, therefore, this suit is barred. She also contends that the court ordered the house sold without setting the respective interests of the parties and that the court failed to set out the complete terms and conditions for the sale.
Both parties to this suit concede that the court had jurisdiction to hear the case. Mrs. Filer contends on appeal, however, that a second suit was not the proper vehicle for seeking enforcement of the provision of the divorce decree pertaining to the sale of the residence. Although a motion to enforce the divorce decree might have been preferable to a second suit, this error is more cosmetic than substantive. The Circuit Court of Jefferson County had jurisdiction in this case, whether the form of the action was a motion to enforce the divorce judgment or a separate suit. Mrs. Filer was not prejudiced simply because Mr. Filer chose to file a separate suit. Regardless of form, the relief which Mr. Filer sought under either procedure was to get the parties' property sold.
Mrs. Filer argues that the April 12, 1985 judgment, the subsequent order for sale by auction, and the court's approval of the sale constitute a modification of the non-modifiable property division included in the divorce decree. This argument disregards the clear weight of authority in Alabama. See Haney v. Haney, 50 Ala. App. 79, 277 So. 2d 356 (1973); Mayhan v. Mayhan, 395 So. 2d 1022 (Ala.Civ.App. 1981); and Boyd v. Boyd, 447 So. 2d 790 (Ala.Civ.App.1984).
In Mayhan, supra, the husband was awarded use of the house, but if the house should be sold, proceeds from the sale were to be divided equally. The wife successfully petitioned the court for a sale of the house and an equal distribution of the proceeds. The husband claimed, as does Mrs. Filer in the present case, that the trial court lacked the authority to order the sale of the house because an order of sale would constitute a modification of a non-modifiable property settlement. The Court of Civil Appeals said, in Mayhan:
Id., at 1023-24. Again, in Boyd, supra, the Court of Civil Appeals reaffirmed the finality of the judgment of divorce for purposes of appeal but said that the judgment was interlocutory to the extent that further action might be necessary to extend, clarify, refine, and implement the judgment. 447 So.2d, at 793.
Here, as in Mayhan, and Boyd, supra, the April 12, 1985 judgment did not alter or modify the division of proceeds to be realized from the sale of the Filers' house. The divorce judgment ordered that the house be placed on the market at $150,000.00. During the next two years, the house was listed at prices ranging from $150,000.00 to $165,500.00. Mrs. Filer refused to allow a listing at less than $150,000.00 despite advice from more than one agent that a realistic selling price would be substantially less.
The last realtor to list the house, before it was auctioned, conducted a market analysis and advised the Filers that $120,000.00 would be a realistic price, given the area and the condition of the house. Nothing in the original judgment supports the argument that $150,000.00 was a minimum sales price intended by the court to remain fixed despite subsequent prevailing market conditions or the condition of the property. The divorce decree ordered that the house be "placed on the market at a sale price of $150,000.00." As the record clearly attests, attempts to sell the Filers' house for $150,000.00 or more were unsuccessful. Based upon the testimony presented at trial, we cannot say that the sales price of $121,000.00 was at all unreasonable. In addition, the division of the proceeds from the sale remains unchanged. The court did no more than enforce the original judgment, as it was empowered to do.
Mrs. Filer asks that the sale be set aside on the grounds that the court failed to observe proper procedure. Specifically, she contends that the court failed to set the respective interests of the parties in regard to the reimbursable expenses to be charged against the proceeds from the sale of the house before dividing the remainder between the parties, and also failed to prescribe whether the sale should be on a cash basis or on an installment basis.
Mrs. Filer failed to address either of these alleged irregularities regarding the sale in her objections and exceptions; therefore, she may not raise them to attack the sale on appeal. Taylor v. Taylor, 398 So. 2d 267 (Ala.1981). In any case, however, these objections are without merit. We have held, in Hogan v. Carter, 431 So. 2d 1160 (Ala.1983):
431 So.2d, at 1163. Appellee points out that "although the original Order Granting Motion for Sale does not include specifics regarding the terms of sale, these particulars were subsequently added by the Circuit Court's Memo to File which directed the Deputy Register to adhere to certain procedures in conducting the sale of the residence."
Mrs. Filer concedes the existence of the corrective memo, but argues that it lacked the weight of a judicial decree and did not obligate the register in the conduct of the sale. She goes on to suggest that a higher sales price might have been realized if a credit sale had been permitted. In fact, the *702 record is clear that Mrs. Filer refused to consider the initial offer to buy the house, which included such a provision, and she testified that she would not agree to holding a mortgage for a buyer. Once again, Mrs. Filer seems to argue form over substance. There is no evidence that she was injured by the court's use of a corrective memo to amend the order for sale. The selling price of the house was actually greater than the proposed listing price suggested by the last realtor to represent the Filers.
We also find no merit in Mrs. Filer's contention that the court failed to set the respective interests of the parties in regard to the reimbursable expenses to be charged against the proceeds from the sale of the house before dividing the remainder between the Filers. Paragraph eight of the original decree, supra, provided that all taxes, insurance, and repairs were to be paid by Mr. Filer, for which he would be reimbursed at the time of sale. The April 12, 1985, judgment did nothing to alter the effect of the original order. It provided, in addition to the terms set forth in the original decree:
There is no dispute that the proceeds from the sale are to be equally divided after the aforementioned reimbursable expenses are deducted. The interests of the parties were clearly set by the original decree. The court merely recognized that expenses caused by Mrs. Filer, "other than normal maintenance," which occurred after judgment was ordered for Mr. Filer, should be paid out of her share of the proceeds. Again, we are of the opinion that Mrs. Filer could not have misconstrued the clear direction of the court as to the parties' respective interests in the proceeds.
We hold that the circuit court was correct in finding for Mr. Filer and, subsequently, in ordering and then approving the sale of the house. We note that the court heard testimony presented ore tenus. Findings of fact based upon evidence presented ore tenus will be presumed correct and will not be disturbed on appeal if supported by the evidence or "any reasonable inferences therefrom." Bettis v. Bettis, 475 So. 2d 847 (Ala.1985). More than sufficient evidence exists to affirm the judgment of the circuit court.
The judgment of the circuit court, therefore, is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and STEAGALL, JJ., concur. | January 16, 1987 |
32518cf8-2391-403d-ba77-03b2e2298675 | Town of Mulga v. Town of Maytown | 502 So. 2d 731 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 731 (1987)
TOWN OF MULGA, et al.
v.
TOWN OF MAYTOWN.
85-724.
Supreme Court of Alabama.
January 30, 1987.
*732 Ralph E. Coleman, Birmingham, for appellants.
Powell Lipscomb, of Lipscomb & Lipscomb, Bessemer, for appellee.
HOUSTON, Justice.
Maytown, a municipal corporation, enacted a business license ordinance imposing an excise tax on businesses engaged in the manufacture or distribution of gas within its municipal limits. The ordinance, in pertinent part, reads as follows:
Mulga, a municipal corporation, is engaged in the business of selling and distributing gas to customers residing in Maytown through a gas distribution system which is owned by Mulga and operated by its waterworks board. However, maintaining that it is exempt from the requirements of the ordinance, Mulga has refused to purchase a license. Maytown filed a complaint in the Circuit Court of Jefferson County seeking a judgment declaring Mulga subject to the licensing requirement. Mulga appeals from a summary judgment granted in favor of Maytown. We affirm.
The sole issue in this case is whether Mulga is exempt from the licensing requirement contained in the ordinance. Mulga initially bases its claim for an exemption on Article IV, Section 91, of the Constitution of the State of Alabama (1901), and § 11-50-235(c) and § 11-50-322, Code 1975.
Article IV, Section 91, of our Constitution expressly exempts from taxation the *733 property, real or personal, of the state, counties, and municipal corporations. However, that section does not prohibit an excise or privilege tax from being levied against a municipality. City of Anniston v. State, 265 Ala. 303, 91 So. 2d 211 (1956); Town of Hackleburg v. Northwest Gas Dist., 277 Ala. 355, 170 So. 2d 792 (1964); Tillman v. City of Homewood, 374 So. 2d 271 (Ala.1979).
Sections 11-50-235(c) and 11-50-322, supra, expressly exempt from taxation the "property and income" of public corporations formed for the purpose of operating water, sewer, gas, or electric systems. The exemption thus granted is only on the property and income of the corporation. As previously stated, the tax levied by Maytown is an excise tax on the privilege of operating a gas distribution business within its municipal limits, and is not a property or income tax. Town of Hackleburg v. Northwest Gas Dist., supra; Tillman v. City of Homewood, supra. Therefore, Mulga is not exempt under these sections.
Relying on a number of cases, including City of Anniston v. State, supra, Mulga also argues that it is not subject to the licensing requirement because the ordinance does not clearly indicate that it was intended to apply to municipalities.[1] In City of Anniston, the Court stated the general rule that "when a tax levy is made in general terms with nothing to indicate that it was intended to apply to a city or a county it will be held not to so apply." The Court went on to say, "This so-called rule of exemption is court-made, based upon the theory that the city or county must levy a tax to pay the tax, which we will not ordinarily presume was intended by the legislature." 265 Ala. at 305, 91 So. 2d at 212.
In Long v. Roberts & Son, 234 Ala. 570, 176 So. 213 (1937), the Court, quoting Van Brocklin v. Anderson, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845 (1886), expressed the rule thusly;
234 Ala. at 575, 176 So. at 217.
And in City of Huntsville v. Madison County, 166 Ala. 389, 52 So. 326 (1910), one of the first cases (if not the first) to discuss the rule, it is stated:
166 Ala. at 391-92, 52 So. at 326-27.
It appears well established that the state may levy an excise tax on a municipality, provided the intention to tax is clear and no constitutional inhibition exists. Likewise, it also appears that when the power of the state to tax is delegated to a municipality, as in this case, the intention to allow that municipality to levy a tax on another municipality must clearly appear.
In the present case, Maytown was delegated the authority pursuant to § 11-51-90, Code 1975, to license any "business ... not prohibited by the Constitution or laws of the state which may be engaged in or carried on in the city or town." Maytown has by clear language imposed an excise tax on "businesses" engaged in the distribution of gas within its municipal limits. While it is true, as Mulga insists, that the ordinance does not specifically refer to municipalities, we do not consider that omission to be fatal. "Where a municipality engages in the business of furnishing electricity, lights, water, or gas to the public, it is not then discharging or exercising governmental functions or powers, but is exercising proprietary or business powers, and as to such business it is governed by the same rules of law which are applicable to ordinary business corporations." Town of Hackleburg v. Northwest Gas. Dist., supra; City of Decatur v. Parham, 268 Ala. 585, 109 So. 2d 692 (1959).
We are not aware of any similar case in which this common law rule has been applied so as to provide an exemption from a tax levied on a municipality engaged in a business. Indeed, the theory upon which the rule is based (i.e., that a municipality would be compelled to levy a tax to pay a tax) does not support an application of the rule under the facts of this case, where Mulga is engaged in a business to raise revenue. The tax imposed by Maytown is simply a business expense which Mulga should be able to pay from the funds generated by the sale of the gas to the citizens of Maytown. We think it prudent to reiterate that the basing of an excise tax on the gross receipts of a business is not a tax on income but an excise or privilege tax, the amount of the tax being regulated by the extent to which the privilege has been enjoyed. See Tillman v. City of Homewood, supra, at 272-73, quoting Nachman v. State Tax Commission, 233 Ala. 628, 635, 173 So. 25, 31 (1937).
Therefore, it is clear to us, and we so hold, that in enacting § 11-51-90, supra, the legislature intended for a municipality like Mulga (i.e., one which is engaged in a business within the corporate limits of another municipality) to be subject to taxation as is any other business.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). Since it is not disputed that Mulga is engaged in the business of selling and distributing gas within the municipal limits of Maytown, the summary judgment in favor of Maytown was proper.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.
[1] It does not appear from our review of the record that Mulga made this particular argument to the trial court. However, because both parties have discussed the issue in their briefs, in addition to the fact that the question is one of importance to the municipalities of this state, we will address it. | January 30, 1987 |
2f5bf1db-ebcb-479c-9989-5e21be229ec6 | Sims v. Sims | 502 So. 2d 722 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 722 (1987)
Billy SIMS, as Executor of the Estate of Fannie M. Sims, Deceased
v.
Albert T. SIMS, et al.
85-535.
Supreme Court of Alabama.
January 30, 1987.
*723 Bill Kominos of Fuqua & Kominos, Ozark, for appellant.
William H. Filmore, Ozark, for appellees.
BEATTY, Justice.
Appeal by plaintiff, the executor of the estate of Fannie M. Sims, from summary judgment for the defendants, Albert T. Sims, et al., in plaintiff's suit to quiet title to certain land in Dale County. We affirm.
The real property in question consists of 160 acres, more or less, conveyed in 1911 by Mazzie Woolley and her husband, W.P. Woolley, to T.W. Sims, a/k/a Tell Sims, for a consideration of $1,000.
T.W. Sims was married twice. His first wife was Daisy Sims. T.W. and Daisy had three children: Albert, Herman, and Frankie. Herman is deceased; his survivors are his widow, Dee Fant Sims, and their two daughters, Becky Surrency and Mary Lee Pitts.
Following the demise of Daisy Sims, and after he had purchased the property in question, T.W. Sims married Fannie Sims in 1911. T.W. and Fannie had eight children. With the exception of a two-year period, T.W. and Fannie Sims lived on the land in question until 1945, the year T.W. died intestate.
During the time that T.W. and Fannie lived on the property, several transactions concerning it occurred. In 1915, T.W. and Fannie Sims executed a mortgage on the property in favor of L.B. Sims, to secure an indebtedness of $290.30. This mortgage was satisfied in January 1924. During the pendency of this mortgage, T.W. and Fannie gave a warranty deed on October 23, 1923, to certain timber on this real property to the Ozark Lumber Company for a consideration of $500.
On April 5, 1926, T.W. and Fannie executed a mortgage on this property in favor of Mrs. S.L. Moncill to secure an aggregate indebtedness of $1,000, as evidenced by ten installment notes to become due annually. The first five of these notes were for $200 each, and they were due on October 15 in successive years beginning in 1926 and ending in 1930. The other five notes represented differing amounts of interest at 8 percent and were, likewise, payable on October *724 15 in successive years from 1926 to 1930. These notes were as follows: One note for $36.95 due October 15, 1926; one note for $56.00 due October 15, 1927; one note for $42.00 due October 15, 1928; one note for $28.00 due October 15, 1929; and one note for $14.00 due October 15, 1930. This mortgage was satisfied in 1935.
On February 18, 1929, T.W. and Fannie conveyed the 160 acres by warranty deed to C.J. Sims, the brother of T.W., for a consideration of $243.75.
Thereafter, in October 1934, T.W. and Fannie, who were still occupying this 160 acres, granted to one P.C. Benedict an oil and gas lease to this property for a term of five years for a consideration of $1.00 and a one-eighth royalty on the gas produced.
In 1935, T.W. received a right-of-way deed from Mrs. J.H. Marley covering a road to this 160-acre tract, which the Simses continued to occupy. And, in 1938, T.W. mortgaged this property under the Emergency Farm Mortgage Act of 1933 to the Land Bank Commission to secure a loan indebtedness of $1,000. This was satisfied in 1944, and, in the next year, 1945, T.W. died intestate.
In 1972, the eight children of T.W. and Fannie Sims conveyed their interest in the property in question to their mother.
This suit was brought in 1983 by Fannie Sims to quiet title in her name to the 160-acre tract. The defendants, Albert Sims, Frankie Sims Wright (children of T.W. and Daisy Sims), and Rebecca Surrency and Mary Lee Pitts (children of Herman Sims, deceased, who was also a child of T.W. and Daisy Sims), answered by claiming a three-elevenths interest in the property and they sought a sale for division.
Plaintiff Fannie Sims moved for summary judgment, submitting the affidavits of Billy Sims, James R. Fuqua, and Fannie Sims. Defendants responded with a memorandum and the affidavit of Rebecca Ann Surrency. Discovery ensued, with depositions of Fannie Sims, Albert T. Sims, and Rebecca Sims Surrency being taken. Several additional affidavits were filed by the parties. Defendants also moved for summary judgment. Meanwhile, Fannie Sims died, and, subsequently, Billy Sims, as executor of the estate of Fannie Sims, was substituted as the plaintiff. Lenora Duato and Susie Longman, heirs of C.J. Sims, were also added as parties defendant.
In due course, a hearing was held on the summary judgment motions. The plaintiff's motion was denied. The defendants' motion was granted, with the trial court entering an order finding the following facts:
On appeal, the plaintiff maintains that title to the land in question ripened in Fannie Sims by adverse possession and prescription. The plaintiff insists that the land went to C.J. Sims by deed in 1929, and that after T.W. Sims died, Fannie held adversely against the title of C.J. Sims. The defendants argue, on the other hand, that title to the property remained in T.W. Sims until he died in 1945, and that Fannie Sims had only a life estate therein and, therefore, could not gain title against the defendants, remaindermen, by adverse possession. We agree with the defendants' position.
It is a familiar principle that a trial court's factual findings based on ore tenus evidence are presumed correct, and that a judgment based upon them will not be disturbed on appeal unless it is plainly and palpably erroneous. Wadsworth House Movers v. Salvage One Demolition, Inc., 474 So. 2d 686 (Ala.1985).
Insofar as the effect of the warranty deed from T.W. and Fannie Sims to C.J. Sims is concerned, we find sufficient evidence on which to base a finding that this deed was intended to be a mortgage. As was stated in Roberson v. Faircloth, 365 So. 2d 1224 (Ala.Civ.App.1978), cert. denied, 365 So. 2d 1226 (Ala.1979):
The trial court had before it the deeds and mortgages alluded to earlier. It could have taken note of the disparity in the consideration paid for the property and the consideration expressed in the deed to C.J. Sims. Cousins v. Crawford, 258 Ala. 590, 63 So. 2d 670 (1953). Indeed, Fannie Sims, herself, did not remember either conveying the property to C.J. Sims or borrowing money from him. Additionally, the mortgage payments to Mrs. S.L. Moncill in the amount of $242.00, payable October 15, 1928, is very close to the $243.75 that T.W. Sims received as consideration for the deed on February 18, 1929. The October 15, 1929, installment on the Moncill mortgage was $228.00; again, a sum close to the amount of the consideration for the deed.
It did not go unnoticed that T.W. and Fannie Sims continued to live on the property from 1929 until 1945, or thereabouts; that five years after the conveyance to C.J. Sims, T.W. and Fannie gave an oil and gas lease on the property; that they secured a right-of-way deed relating to that property in 1935; and that they mortgaged that property to the Land Bank Commission in 1938.
Not only did Fannie Sims remember granting the oil and gas lease, but she also remembered selling the timber and receiving the right-of-way deed. She testified, concerning the conveyance by her children of their interests to her, that "[T.W.] bought the thing before he married me and my name wasn't on the deed." The trial court could have drawn from the evidence regarding this transaction a reasonable inference that the parties, Fannie and her children, intended, in 1972, to convert Fannie's dower interest into a fee simple interest, their underlying premise being that T.W. had owned the property at his death.
The trial court having found that T.W. Sims owned the real property in question at his death, could his widow, Fannie Sims, hold adversely to the children of T.W. and Daisy Sims? Although the trial court did not make an express finding on this issue, it is nevertheless implicit in its order that Fannie Sims, as the widow of T.W. Sims, could have, under the law at the time of his death, only a life estate in his lands. *726 Code of 1975, § 43-5-1(1) (subsequently repealed). Worley v. Worley, 388 So. 2d 502 (Ala.1980). Defendants here, the children of T.W. and Daisy Sims and holders of a three-elevenths interest in the land of their father, were remaindermen. There can be no adverse possession by a life tenant against a remainderman. Lucas v. Brown, 396 So. 2d 63 (Ala.1981). Thus, Fannie Sims could not have acquired title to the interests of the children of T.W. and Daisy Sims by adverse possession.
A trial court's ruling must be sustained on appeal if any good ground is presented for its support, whether or not that ground is stated in the judgment. Dougherty v. Hovater, 425 So. 2d 1082 (Ala. 1983).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | January 30, 1987 |
d96a9986-1ca3-4c1c-89f6-4dbf559a319a | Ex Parte Wright | 709 So. 2d 1111 | 1951073 | Alabama | Alabama Supreme Court | 709 So. 2d 1111 (1996)
Ex parte Ronald Lee WRIGHT.
(Re Ronald Lee Wright
v.
State).
1951073.
Supreme Court of Alabama.
December 13, 1996.
David S. Luker and J. William Cole, Birmingham, for petitioner.
Jeff Sessions and Bill Pryor, attys. gen., and Jean Williams Brown, asst. atty. gen., for respondent.
SHORES, Justice.
We granted certiorari review to decide the validity of an anticipatory search warrant based upon an affidavit showing probable cause that at some future time (but not currently) certain evidence of a crime will be located at a specified place. Based on the evidence seized in a search resulting from an anticipatory search warrant, Ronald Lee Wright was convicted of trafficking in marijuana; he was sentenced to 10 years in the penitentiary and fined $25,000. The Court of Criminal Appeals affirmed, with an unpublished memorandum. Wright v. State, 683 So. 2d 1069 (Ala.Crim.App.1996) (table). We reverse and remand.
On September 23, 1993, John Minor, without solicitation by police officers, went to the home of Ronald Lee Wright to arrange to sell him marijuana. Wright contends that at this meeting the two never discussed drugs and agreed only to the trade of Wright's pickup truck and $2,500 in exchange for an automobile owned by Minor. Police had previously caught Minor with over 80 pounds of marijuana, and Wright alleges that he had been "set up" by Minor who, Wright says, was seeking to lighten his sentence by falsely implicating Wright in marijuana trafficking.
After his initial meeting with Wright, Minor telephoned Agent N.E. Willingham of the Alabama Department of Public Safety, Narcotics Division, and told him that Wright had agreed to purchase 10 pounds of marijuana. Based upon his conversation with Minor, Agent Willingham executed an affidavit for an anticipatory search warrant; the affidavit stated as follows:
As a result of Agent Willingham's affidavit, the magistrate issued a search warrant on September 24, 1993, the morning of the anticipated marijuana transaction. It stated that the magistrate was "satisfied that there is probable cause to believe that [marijuana and evidence of marijuana trafficking] will be concealed on the person, premises, or automobile [of Wright]." (Emphasis added). The warrant authorized a search within the next 12 hours, after the anticipated marijuana transaction would have taken place.
The same morning, at about 11 o'clock, Minor drove his automobile to Wright's residence, taking with him a brown paper bag containing approximately 10 pounds of marijuana, which had been supplied to him by police. Minor was followed by Agent Willingham and other law enforcement officers and was "wired" so as to enable the police to hear and record conversations that would occur at Wright's residence. When Minor arrived, he and Wright spoke briefly in the house and then stepped outside. At some point, the bag containing the marijuana was transferred from Minor's automobile to a garbage can that had been located near Wright's house. Because the police were monitoring the situation from an out-of-sight position down the road, they could not see the transfer, but Minor testified that Wright rolled the garbage can toward Minor's automobile and placed the bag into the garbage can. Agent Willingham testified that he and the other agents immediately drove into *1113 Wright's driveway and there saw Wright wheeling the garbage can toward his house. Upon seeing the agents, Wright ran toward the rear of his residence, holding the garbage can as he ran. The police chased Wright and surrounded him on the back side of his house; he was still holding the garbage can. Agent Willingham then arrested and handcuffed Wright and served the search warrant upon him. However, Willingham did not at that time look inside the garbage can to verify that it contained the marijuana. Instead, Wright was taken inside the house and there was informed of his Miranda rights. Willingham removed the marijuana from the garbage can only after he had taken a statement from Wright inside the house. The marijuana was subsequently admitted at Wright's trial.
At trial, Wright argued that the search warrant was anticipatory in nature and was therefore not supported by probable cause when it was issued. Wright contends that the trial court should have suppressed the marijuana, arguing that the police recovered it as a result of an illegal search. The Court of Criminal Appeals rejected Wright's argument, holding in its unpublished memorandum that the search of the garbage can was conducted pursuant to a valid search warrant and was therefore legal. That court found that the warrant was indeed prospective in nature, but stated that "[a]nticipatory search warrants are valid in this state." Thus, we must consider whether the Court of Criminal Appeals was correct in holding that the search of the garbage can was justified on the basis that it was conducted pursuant to the search warrant. We hold that it was not. Therefore, we reverse.
In affirming Wright's conviction, the Court of Criminal Appeals cited its opinion in Oswalt v. State, 686 So. 2d 361 (Ala.Cr.App. 1994), for the proposition that anticipatory warrants are valid in Alabama. However, after the Court of Criminal Appeals issued its unpublished memorandum affirming Wright's conviction, this Court reversed the judgment of the Court of Criminal Appeals in Oswalt. See our opinion in Ex parte Oswalt, 686 So. 2d 368 (Ala.1996), holding that the anticipatory search warrant in Oswalt was not valid under state law. The prosecution of Oswalt, like the prosecution of Wright, was brought in Tuscaloosa County, and in both cases the same narcotics officer, Agent Willingham, made his drug trafficking case by executing an anticipatory search warrant. In Ex parte Oswalt this Court stated that while an anticipatory search warrant is not unconstitutional per se, the threshold question in considering an anticipatory warrant is whether the specific warrant was authorized by Rule 3.8, Ala. R.Crim. P., which enumerates the grounds that will support the issuance of a search warrant. Analyzing the search warrant in the Oswalt case, this Court said:
Ex parte Oswalt, 686 So. 2d at 373. (Emphasis in original.) Based upon this analysis in Oswalt, we strongly recommended that "the Criminal Rules Advisory Committee redraft Rule 3.8 to permit the broader issuance of anticipatory search warrants than the rule currently allows." Oswalt, 686 So. 2d at 374. However, we also held that the warrant in Oswalt was void:
686 So. 2d at 373-74 (footnote omitted).
Similarly, the warrant used in this case to justify the search of the garbage can was not valid under Rule 3.8, Ala. R.Crim. P. As we recognized in Ex parte Oswalt, Rule 3.8 does not contemplate the issuance of a search warrant where the crime to which the evidence at issue relates has not yet occurred and the evidence to be seized is not presently in the possession of the person whose premises are to be searched. In this present case, it is uncontested that "the crime, [Wright's] purchase and possession of a large volume of a controlled substance, had not occurred and the evidence, the [marijuana,] was not in his possession at the time the search warrant was issued." See 686 So. 2d at 373-74. Thus, the search warrant purporting to authorize the search of Wright's premises was not valid under Rule 3.8.
Accordingly, we hold that the search of the garbage can was not made lawful by the fact that it was authorized by the search warrant.[1] However, our holding here should not be interpreted to mean that the marijuana evidence necessarily must have been suppressed at trial pursuant to the Fourth Amendment exclusionary rule. We hold today only that the search could not be justified on the grounds that it was authorized by a valid search warrant. We do not express an opinion on the separate questions whether the police could nonetheless have reasonably relied upon the invalid warrant in "good faith," see United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Ex parte Morgan, 641 So. 2d 840 (Ala.1994), or whether the circumstances of this case might have allowed a warrantless search of the garbage can under the Fourth Amendment. See Daniels v. State, 290 Ala. 316, 276 So. 2d 441 (1973). As in Ex parte Oswalt, where we remanded to allow the trial court to make the initial determination whether the State could make a sufficient showing of exigent circumstances to justify a warrantless search, we believe that these questions should be passed upon by the trial court in the first instance. The judgment of the Court of Criminal Appeals affirming Wright's conviction, based upon the holding that the search warrant was valid under Alabama law, is reversed. This cause is remanded with instructions for the Court of Criminal Appeals to remand it to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and KENNEDY, COOK, and BUTTS, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I joined Justice Maddox's dissent in Ex parte Oswalt, [Ms. 1950203, May 24, 1996] 686 So. 2d 368 (Ala.1996), and I am still convinced, based upon Justice Maddox's reasoning in his dissent in Oswalt, that the search and seizure in Oswalt and the search and seizure in this case were not "unreasonable." The United States and Alabama Constitutions *1115 protect individuals only from "unreasonable searches and seizures" (Amendment IV, United States Constitution) and "unreasonable seizure or searches" (Art. I,§ 5, Alabama Constitution 1901).
MADDOX, J., concurs.
[1] The dissent states that the searches in both this case and in Oswalt were not "unreasonable" under either the Fourth Amendment of the United States Constitution or Art. I, § 5, of the Alabama Constitution of 1901. We may agree on this point, but that is not the specific question before us. Rather, the issue here, as it was in Oswalt, is whether the search warrant itself could be used to justify the search. We merely hold that Rule 3.8 does not contemplate the anticipatory search warrants relied upon in this case and in Oswalt, and, therefore, that those warrants were not valid and could not, in themselves, justify the searches. We do not hold that the search itself was necessarily "unreasonable" under the either the Alabama or United States Constitution. This is evident from our recognition that the searches in these cases might be justified on grounds other than having been conducted pursuant to a valid warrant, as we explain in the text. Our recommendation in Oswalt that Rule 3.8, Ala. R.Crim. P., should be amended to authorize the issuance of anticipatory search warrants under certain circumstances also demonstrates our belief that searches conducted pursuant to anticipatory search warrants are not unconstitutional per se. Amending a Rule of Criminal Procedure would, of course, be futile if we interpreted constitutional provisions to prohibit the very amendment being made. | December 13, 1996 |
26dc9a4c-5f31-415d-ad05-9b1b1d42f482 | Frazier v. LABORERS INT. U. OF NORTH AMERICA | 502 So. 2d 743 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 743 (1987)
Clevie Lee FRAZIER, as administratrix of the estate of Lloyd Reese, deceased
v.
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL NO. 559, et al.
85-1232.
Supreme Court of Alabama.
January 30, 1987.
*744 John L. Cole, Birmingham, for appellant.
James B. Carlson of Rives & Peterson, Birmingham, for appellees.
BEATTY, Justice.
This is an appeal by the plaintiff, Clevie Lee Frazier, in her capacity as administratrix of the estate of Lloyd Reese, from a summary judgment entered in favor of certain defendants in her action for the wrongful death of Lloyd Reese. The trial court made its order final under Rule 54(b), A.R. Civ.P. We affirm.
Plaintiff's decedent, Lloyd Reese, was a member of the Laborers International Union of North America, Local No. 559. On May 4, 1983, Reese was shot and killed during an altercation that broke out in an employment line formed for job registration on Local No. 559's premises. Apparently Reese was not involved in the altercation, but was, nevertheless, struck and killed by a stray bullet. Plaintiff brought this wrongful death action, naming as defendants Columbus Lawson, the man who fired the shot; Local No. 559; and eleven of Local No. 559's officers, individually and as agents of Local No. 559. As to these defendants, except Lawson, plaintiff alleged:
*745 These defendants moved for summary judgment, arguing that they were under no duty to protect plaintiff's decedent from criminal attack. In support of their motion, defendants submitted the affidavits of defendants Willie W. Ball, business manager for Local No. 559, and Joe Nathan Black, secretary-treasurer and assistant business manager for Local No. 559. Both of these defendants stated that due to the nature of their respective duties and responsibilities, each was familiar with and had knowledge of the "practices and methods utilized for registration of members and others in Local No. 559 prior to, and on the date of, the accident made the basis of [this] lawsuit." Those practices and methods were described as follows:
Mr. Ball, who was not present on the day of Lloyd Reese's shooting, stated that he had "been present on many occasions preceding the date in question and [could] verify that there [had] been no fights or fist fights, stabbings or gunshots which have caused injury or disruption during this employment procedure." He further stated that, to his knowledge, the police had never been summoned to the Local No. 559 location to quell any major disturbance, fight, or argument, or to respond to a call for medical assistance for someone injured by another person while standing in the registration line. Mr. Ball conceded that there had been arguments among union members while standing in line, but he stated that "these disagreements [had] always been handled amicably and without incident."
Mr. Black, who was present on the day of Lloyd Reese's shooting, stated that he, too, was present on many other preceding Wednesdays, that he had been employed by Local No. 559 for approximately 12 years, and that, to his knowledge, this shooting was the first serious incident that ever occurred in the registration line.
In opposition to the defendants' motion for summary judgment, plaintiff submitted the affidavit of Floyd Reese, brother of the decedent, who is also a member of Local No. 559. Floyd Reese stated that he was present on the date of his brother's shooting, and had been present "on many occasions preceding [that] date." Floyd Reese further stated that he could, therefore,
The trial court granted defendants' motion and this appeal followed.
Plaintiff makes two arguments. First, she contends that her decedent, Lloyd Reese, could be considered an employee of the defendants, and that this determination is a question of fact precluding summary judgment. Plaintiff argues that, if Reese was deemed to be an employee, this Court's decision in Parham v. Taylor, 402 So. 2d 884 (Ala.1981), would apply to this case. In Parham, this Court followed a decision from the Kentucky Court of Appeals and held:
402 So. 2d at 886. Plaintiff contends that the evidence in this case gives rise to issues of fact under the above test, which was recently reiterated by this Court in Simpson v. Wolf Ridge Corp., 486 So. 2d 418, 419 (Ala.1986).
*746 Plaintiff argues in her brief that Lloyd Reese should be considered an employee of the defendants rather than an invitee because he "paid dues to the union, was a member of the union, obtained employment under their employment procedures and obtained his employment at their premises." However, we have reviewed the record in this case in its entirety and are unable to find any allegation or proof whatsoever that an employer/employee relationship existed between the defendants and the plaintiff's decedent. The law in this jurisdiction is clear that:
Ford v. Mitcham, 53 Ala.App. 102, 105, 298 So. 2d 34, 36 (1974). See also Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 398, 232 So. 2d 638, 640 (1970):
There are no allegations and no proof whatsoever that any of the factors used in deciding the existence of an employer/employee relationship are present in this case. Thus, the duty that we have held applicable to employers, to protect their employees from criminal attacks by third parties, is not applicable to the defendants in this case.
Plaintiff's alternative, yet clearly primary, argument is that the evidence gives rise to genuine issues of fact with respect to whether the defendants had the duty to protect their invitees from criminal attack because they "possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability. Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala.1984)." Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala.1985). We agree with plaintiff that on these facts her decedent was an invitee and that there is an issue of fact with respect to whether there had, in fact, been any prior serious disturbances, fights, arguments, guns drawn, etc., to which the police had, on occasion, been called to respond. However, even viewing the evidence most favorably to the plaintiff, and taking her evidence as true, it, nevertheless, falls far short of establishing that the occurrence of such criminal activity was a probability. Floyd Reese merely stated in his affidavit that "there have been fights or fist fights, and guns have been drawn [causing] injury or disruption." He makes no mention of "the frequency of criminal incidents which put the defendant on notice and thus created the duty to protect." Henley, supra, at 276.
Because adducing at least a scintilla of evidence of such a probability of criminal activity is the plaintiff's burden in cases such as these, this Court has found that "it is difficult to impose liability on one person for an intentional criminal act committed by a third person." CIE Service Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala.1984). Indeed,
Ortell v. Spencer Companies, Inc., 477 So. 2d at 299. Accord, Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala.1986). This case proves to be no exception. Plaintiff has failed to present even a scintilla of evidence to show that criminal attack was a probability. Absent such a showing, summary judgment *747 for the defendants was properly entered.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur. | January 30, 1987 |
f63d8aed-da5e-4e3c-9c4e-c92a8df4ba9a | Eager Beaver Buick, Inc. v. Burt | 503 So. 2d 819 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 819 (1987)
EAGER BEAVER BUICK, INC.
v.
Charles BURT.
85-614.
Supreme Court of Alabama.
January 2, 1987.
Rehearing Denied February 20, 1987.
*820 Sam McCord of Donovan, McCord & Hoffman, Birmingham, and Patricia C. Kellett of Kellett & Gillis, Fort Payne, for appellant.
Roger Killian, Fort Payne, for appellee.
BEATTY, Justice.
This is an appeal by a defendant, Eager Beaver Buick, Inc. ("Eager Beaver"), from a judgment in the amount of $18,850 entered in favor of the plaintiff, Charles Burt, in plaintiff's action for breach of a written employment contract. We affirm in part, reverse in part, and remand.
The case was tried to the trial court ore tenus without a jury. That court entered an order which is set out in pertinent part below:
When a case has been tried ore tenus, every presumption is indulged in favor of the trial court, and its findings will not be disturbed on appeal unless palpably wrong or manifestly unjust. Gulledge v. Frosty Land Foods International, Inc., 414 So. 2d 60 (Ala.1982).
While a review of the record does not establish that a challenge to a physical confrontation between plaintiff and one of the owners occurred prior to plaintiff's tender of his resignation, it does establish a tense and disagreeable working relationship. This difference, under these factual circumstances, does not make the trial court's findings palpably wrong or manifestly unjust. Indeed, the finding that plaintiff's resignation from his employment was justified is amply demonstrated.
Eager Beaver, in effect, concedes that it breached its contract with Burt when it asked him to commit an illegal and fraudulent act. However, the gravamen of Eager Beaver's defense is that Burt could not maintain his action against Eager Beaver for a breach of contract which occurred two months before Burt tendered his resignation. In other words, Eager Beaver argues that, by waiting two months in hopes "that possibly this thing would die down and everybody would cool off and it would go away," Burt waived the breach of contract or is estopped from bringing an action thereon. We need not reach this issue of waiver. Indeed, we will assume, without deciding, that Eager Beaver did not breach its contract with Burt by merely requesting that he do an unlawful act since, upon his refusal, Eager Beaver did not overtly fire Burt. Nevertheless, the trial court's determination that Eager Beaver is liable to Burt is due to be affirmed because, from the evidence, the trial court, in effect, found that after Burt refused to falsify the certificates, Eager Beaver interfered with the performance of his employment contract, which interference was alleged by the plaintiff in his complaint. This interference, in and of itself, amounted to a breach of that contract.
*822 Generally, contracting parties impliedly promise not to act so as to hinder, prevent, or make more burdensome the other's performance. A breach of this implied promise may be construed as an actual breach of the contract, thereby giving the other party a cause of action on the contract. See 3 A. Corbin, Corbin on Contracts § 571, "Implied Promise Not To Hinder Or Delay Performance By The Other Party," at 349-51 (1950); California v. United States, 151 F. Supp. 570 (N.D.Cal. 1957). In most cases, "prevention or hindrance should clearly be regarded as wrongful." 4 A. Corbin, Corbin on Contracts § 947, "Prevention Or Hindrance Of Performance As A Breach," at 813-16 (1950). Furthermore, that treatise states at 814:
As pointed out above, Eager Beaver did not explicitly fire Burt for refusing to falsify the certificates. Instead, as the trial court found, Eager Beaver made Burt's continued performance extremely difficult and burdensome. Burt was told that he would either falsify the certificates or "we don't need you around here." Burt testified that he was harassed to such an extent that he could not, as sales manager, keep up the morale of the dealership and the salesmen who supposedly worked under him. He was accused of being disloyal and was told that he ought to be finding another job. When Burt tendered his resignation on August 19, 1983, to be effective August 27, 1983, his resignation was rejected; however, he was told to wait to resign until another owner, Randall Robinson, returned from vacation. The next day, August 20, the president of Eager Beaver, Bill Penney, went by Burt's office and picked up a bulletin board and threw it into Burt's office. Burt threw it back out. The substance of this series of events and activity by Eager Beaver establishes that the plaintiff, Burt, was harassed and antagonized to the point that he was no longer able to perform his job. Eager Beaver is correct in its assertion that it was not the bare request that he perform an illegal act that caused Burt to resign. Rather, it was the conduct on the part of Eager Beaver upon Burt's refusal to commit fraud that left him no choice but to resign. Burt's testimony is clear that, were it not for the hindrance and interference with his performance by Eager Beaver, he would not have resigned.
Id. at 816-17. The plaintiff, in this case, has met his burden of proving that there was a breach of contract, and the judgment holding Eager Beaver liable is due to be affirmed.
Eager Beaver next argues that the damages awarded the plaintiff were excessive because Burt failed to produce Eager Beaver's financial statements or other data as the basis for proving Burt's approximate share of profits he lost as a result of the breach. Eager Beaver contends that, while plaintiff adduced evidence which clearly established the formula by which the profits accruing to him under the contract could be determined, plaintiff, nevertheless, did not prove, with data available to him, his lost profits with that degree of certainty that the nature of this particular case would permit, citing Brendle Fire Equipment, Inc. v. Electronic Engineers, Inc., 454 So. 2d 1032 (Ala.Civ.App.1984). We agree.
In Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So. 2d 880 (1966), cited in Brendle Fire Equipment, supra, the Court quoted from and followed the case of Brigham & Co. v. Carlisle, 78 Ala. 243 *823 (1884). In Brigham, the Court held the following:
(Emphasis added.) 78 Ala. at 248. The employment contract in the present case expressly provided that, in addition to a salary and other "perks," Burt was to receive on a monthly basis an amount equal to four percent of Eager Beaver's "combined variable net profit" as a part of an incentive plan. Thus, profits were an "elemental constituent of the contract." Id.
In Southeast Alabama Broadcasting Co. v. Farrell, 434 So. 2d 756 (Ala.1983), a case somewhat similar to the present case, the plaintiff/employee brought an action against his employer for breach of contract. One of the issues raised by the employer on appeal was whether the jury had improperly assessed plaintiff's damages. The plaintiff's contract in Farrell, supra, provided that he was to receive a percentage of gross revenues as opposed to a percentage of profits:
434 So. 2d at 760. Citing Paris v. Buckner Feed Mill, Inc., supra, this Court held that, based upon specific evidence adduced at trial, which included the testimony of the employer's comptroller as to the employer's reasonable projection of gross revenues, that aspect of the plaintiff's damages was not based upon either conjecture or speculation:
434 So. 2d at 760. (Emphasis added.)
As noted by the trial court in this case, Burt had actually earned only approximately $4,900 in the two months of his contract he had worked. This evidence, along with the testimony of Burt and the owners of defendant Eager Beaver, established that Burt could have reasonably expected to earn $30,000 in that year. However, the only evidence tending to establish that Burt could have expected to earn $40,000 is his own testimony. Thus, to the extent this extra $10,000 in damages represented Burt's contracted-for share of the Eager Beaver profits, this amount was not proved by any standard or other established data, as required by the Paris and Farrell cases, and was awarded based solely on conjecture or speculation. Therefore, the damages awarded to the plaintiff are *824 excessive by $10,000; the damages portion of the judgment is reversed.
Eager Beaver also raises an issue with respect to the propriety of the trial court's denial of its motion for change of venue. It is well established that this issue cannot be raised by appeal. Rochester v. Hamrick Construction Co., 481 So. 2d 881, 883 (Ala.1985); Davis v. Marshall, 404 So. 2d 642, 643 (Ala.1981).
For the foregoing reasons, the judgment below is affirmed in part and reversed in part, and the case is remanded for entry of an order consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
MADDOX, ALMON and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
The interference with the performance of the contract to which the majority opinion refers is interference by a party to the contract, which under these facts amounts to a breach of contract. This is not a case where a non-party to the contract tortiously interferes with the relationship of the contracting parties. | January 2, 1987 |
af25db60-b411-4cf1-aada-709f4fe5c2cc | Reynolds & Reynolds v. King Autos. | 689 So. 2d 1 | 1950854 | Alabama | Alabama Supreme Court | 689 So. 2d 1 (1996)
REYNOLDS AND REYNOLDS COMPANY, INC.
v.
KING AUTOMOBILES, INC.
1950854.
Supreme Court of Alabama.
December 13, 1996.
Rehearing Denied February 28, 1997.
Michael S. Speakman of Haygood, Cleveland, Pierce & Speakman, Auburn; and Laureen E. McGurk and Bryan G. Harrison of Morris, Manning & Martin, Atlanta, GA, for Appellant.
W.F. Horsley and Amy J. Himmelwright of Samford, Denson, Horsley, Pettey & Martin, Opelika, for Appellee.
BUTTS, Justice.
King Automobiles, Inc., sued Reynolds and Reynolds Company, Inc., and fictitiously named defendants, alleging breach of contract, negligence, and various fraud claims arising from an agreement under which Reynolds had sold a computer system and system maintenance program to King Automobiles. The transaction involved a printed "master agreement," which contained an arbitration clause and which had certain attachments; the transaction also involved a handwritten agreement. Reynolds moved to compel arbitration and to stay further court proceedings pending arbitration, based upon the arbitration clause in the master agreement. King Automobiles opposed the motion, arguing that its claims were based solely upon the handwritten agreement and were not related to the master agreement. The trial court denied Reynolds's motions to compel arbitration and to stay proceedings.
During the spring of 1993, Dave King, as president of King Automobiles, met with Bob Fowler, a salesman for Reynolds, to discuss purchasing a computer system known as the ERA 24000. In the course of his discussion with King, Fowler demonstrated a computer system that utilized a new computer processor.
On August 23, 1993, Fowler and Dave King negotiated the purchase of the computer system. King Automobiles alleged that Fowler represented to Dave King that the system utilized a new computer processor and that Dave King then, to buy the system, executed on behalf of King Automobiles a "Reynolds & Reynolds Master Equipment Sales, License, and Services Agreement" (the master agreement). The master agreement called for the delivery of a "reconditioned" processor with 28 "user ports," i.e., 28 physical connections on the processing unit where *2 peripheral devices such as printers, modems, and video monitors could be connected. Fowler and Dave King crossed out the number "28" and wrote in the number "24"; then both of them initialed the change. The arbitration clause in the master agreement stated, in pertinent part:
The master agreement also stated that all equipment, licensed software, material, and services obtained from Reynolds, directly or indirectly, were to be provided only under the terms and conditions of the master agreement. The master agreement stated that it contained the entire understanding of the parties and that it superseded all prior oral or written agreements, communications, and understandings between the parties with respect to the subject matter of the master agreement.
In addition to the master agreement, King Automobiles executed an "Exhibit OS-1," which listed the installation charges associated with the software King Automobiles was purchasing, and an "ERA 24000-RS Addendum," which stated that King Automobiles was acquiring a reconditioned computer processor and would pay a monthly maintenance fee of $1,146 on the processor.
On that same day, King Automobiles compiled a handwritten document stating that "today, 8-23-1993 Bob Fowler and Dave King agreed to the following sale of equipment from Reynolds & Reynolds to King Automobile." The document went on to list the items purchased. These items were the same as those referred to in the master agreement, but the handwritten document did not list the prices for these items, nor did it list the price for certain in-dealership training and cable installation necessary for the system.[1]
A Reynolds representative approved the master agreement and related exhibits in December 1993 and delivered the fully executed documents to King Automobiles on March 7, 1994. The documents stated that the computer processor King Automobiles bought was "reconditioned" and that it had 24 ports. King Automobiles did not contact Reynolds to discuss, or to object to, the master agreement.
In November 1994, Reynolds representatives arrived to install King Automobiles' computer system. As part of the installation process, a Reynolds representative verified that all of the equipment listed on the Exhibit ER-1 had been delivered to King Automobiles and, at this time, King Automobiles objected to the fact that it was receiving a reconditioned processor rather than a new one. The Reynolds representative provided King Automobiles with a second copy of the master agreement, which showed on its face that King Automobiles had bought a reconditioned computer processor. King Automobiles subsequently filed this action.
The Federal Arbitration Act provides that written agreements to arbitrate future controversies are enforceable, if the agreement is voluntarily entered and appears in a contract that concerns a transaction involving interstate commerce. 9 U.S.C. § 3 (1970). See Ex parte Gates, 675 So. 2d 371 (Ala.1996); Ex parte Jones, 686 So. 2d 1166 (Ala.1996). This Court has held where a contract signed by the parties contains a valid arbitration clause that applies to claims "arising out of or relating to" the contract, that clause has a broader application than an arbitration clause that refers only to claims "arising *3 from" the agreement. Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258 (Ala.1994).
In opposition to Reynolds's motion to compel arbitration based upon the arbitration clause contained in the master agreement, King Automobiles conceded that the Federal Arbitration Act applied to the master agreement; however, it argued that its claims were based solely on the handwritten agreement, which did not contain an arbitration clause. King Automobiles argued that it contracted for a new computer system and that, because the master agreement stated on its face that the computer system Reynolds sold to King Automobiles was "reconditioned," the master agreement was not related to its claim. King Automobiles claims that the handwritten acknowledgment of the purchase, which does not specify whether the system was to be a new one or was to be a used one, is the actual contract now at issue and, thus, that its claims are not subject to the arbitration clause contained in the master agreement.
We find no merit in King Automobiles' arguments. King Automobiles admittedly sought to buy only one computer system. The master agreement, its attachments, and the handwritten notation were all executed on the same day, and they all related to this one purchase. King Automobiles places great emphasis on minor variations between the list of purchases in the handwritten document and the terms that are contained within the master agreement; however, any such variations do not change the fact that both the handwritten document and the master agreement arose from the negotiations to make a single purchase. King Automobiles is attempting to prove that it contracted for the purchase of a new system but received a reconditioned one; to prove this claim, King Automobiles must necessarily refer to the master agreement, which states on its face that the system was to be a reconditioned one, not a new one. King Automobiles plainly avers in its complaint that it received copies of the master agreement and that that master agreement was for the purchase of the computer equipment and software at issue.
The handwritten document cannot stand on its own as an enforceable contract upon which King Automobiles could base a breach-of-contract claim; the document merely listed the items to be purchased, without naming a price or evidencing consideration flowing from King Automobiles to Reynolds for the equipment.
The facts clearly show that the handwritten document and the master agreement arise from the same single transaction and that both are central to King Automobiles' claims involving the nature and quality of this single acquisition, the terms under which it was to be delivered, and Reynolds's performance of any such terms. Because these claims necessarily relate to and arise from the master agreement, the arbitration clause contained in that agreement must be enforced. The trial court therefore erred in denying Reynolds's motions to compel arbitration and to stay proceedings pending arbitration. Its order denying those motions is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
[1] The handwritten document reflected a price of $1,600 for a maintenance program, and King Automobiles argues that this amount differed from that reflected in the master agreement. King Automobiles erroneously relies solely on one of the exhibits that was executed with the master agreement, which lists the "CPU maintenance fee" as $1,146; however, the CPU maintenance fee was only a portion of the overall maintenance fee of $1,600. The total maintenance fee stated by the master agreement and its attached exhibits equals $1,600, the figure reflected in the handwritten document. | December 13, 1996 |
01d5ce6f-6735-431f-9436-ee45cb3ad229 | Nichols v. NO. AMER. EQUITABLE LIFE ASSUR. CO. | 502 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 375 (1987)
William NICHOLS
v.
NORTH AMERICAN EQUITABLE LIFE ASSURANCE COMPANY, INC.
85-1193.
Supreme Court of Alabama.
January 16, 1987.
Robert B. Roden, Birmingham, for appellant.
C. William Gladden, Jr., and James A. Bradford of Balch & Bingham, and W.J. McDaniel and Joseph W. Buffington of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a partial summary judgment granted by the Circuit Court of Jefferson County in favor of the defendant, *376 North American Equitable Life Assurance Company, Inc.
William E. Nichols purchased a group major hospital, surgical and medical insurance policy from North American Equitable Life Assurance Company, Inc. (hereinafter "North American"), effective as of November 1, 1981.
In November of 1982, Nichols was admitted to a hospital, where arthroscopic surgery was performed on his right knee. After his hospitalization, Nichols filed a claim with North American under the insurance policy in question.
When Nichols refused to provide certain information about his knee condition, North American sent a letter to him on April 4, 1983. This letter stated:
On June 9, 1983, North American officially denied Nichols's claim and stated the reason as follows:
Nichols filed this action on May 1, 1984, alleging that North American breached the insurance contract, exercised bad faith in refusing to pay his claim, and fraudulently misrepresented that his knee injury would be covered under the policy. These misrepresentations allegedly occurred when Nichols purchased the policy November 1, 1981, and renewed it November 1, 1982.
Nichols testified in his deposition that he suffered an injury to his right knee in 1977 or 1978 that resulted in recurrent "popping and locking" of that knee, that the basis of his insurance claim was the "popping" of that same knee on November 16, 1982, and that he told his physicians that the problem was recurrent. He also testified that his knee condition was pre-existing. Nichols admitted in his deposition that once he received the April 4, 1982, letter from North American which stated that no coverage would be afforded for pre-existing conditions, when North American had told him when he bought the policy that his pre-existing knee condition would in fact be covered, he knew that his claim would ultimately be denied, since North American was not proceeding as had previously been represented.
In its motion for partial summary judgment, North American pointed out that this fraud action was subject to a one-year statute of limitations,[1] and since Nichols admitted knowing more than one year prior to filing suit that the alleged misrepresentations concerning payment of his claim were false, his action should be barred as a matter of law.
Nichols contends on appeal that the one year statute of limitations did not commence running until June 9, 1983, when North American mailed a formal written denial of his claim; thus, he says, his fraud claim was not barred when it was filed in May of 1984.
*377 The trial judge found that there was no genuine issue of material fact as to the claims for fraud and bad faith refusal to pay and, therefore, granted summary judgment in favor of North American. Summary judgment was not entered on the contract claim. Following a Rule 54(b) A.R. Civ.P., certification of finality, this appeal followed.
When this action was commenced, it was subject to the one-year statute of limitations for fraud actions, § 6-2-39(a)(5), Ala. Code 1975. Under § 6-2-3, Ala.Code 1975, the one year allowed by § 6-2-39 began to run when the aggrieved party discovered facts constituting the fraud.[2]
In Retail, Wholesale & Department Store Employees Union v. McGriff, 398 So. 2d 249 (Ala.1981), an injured employee, who had been denied pension benefits due to his employer's failure to make contributions for him to the pension fund, brought an action for fraud, alleging that his employer and union steward had told him that he would receive a pension if he stayed on the payroll for 15 years. While he was still on the payroll, the employee had sought information from the union lawyer concerning his eligibility for retirement benefits. The employee was informed by letter in 1973 that no payments had been made into the pension fund on his behalf since April of 1970.
This Court held that the statute of limitations for fraud began to run when the employee received the letter, instead of two years later when he sought the pension benefits and they were formally denied. We found that the 1973 letter constituted constructive notice to the plaintiff that pension benefits to him would not be forthcoming:
Accordingly, we hold that Nichols's action for fraud accrued when Nichols received his initial correspondence from North American in April. Nichols admitted in his deposition that he knew at that time that his recurrent knee injury could not possibly be covered under the pre-existing condition policy language referred to in the letter. When he received the April 4, 1983, letter, more than one year prior to filing suit, Nichols knew that the policy would not cover his chronic condition as he says had previously been represented to him. Nichols's action for fraud, if any, was barred by the statute of limitations; hence, the granting of summary judgment as to this claim was proper.
We also find that summary judgment was properly entered against Nichols on his claim for bad faith.
The elements of a bad faith cause of action in Alabama are as follows:
Morton v. Allstate Ins. Co., 486 So. 2d 1263, 1267-68 (Ala.1986), quoting National *378 Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982).
North American formally denied Nichols's claim based on the pre-existing condition exclusion in its policy, medical records establishing that Nichols's problem had been recurrent during a four-year period prior to the date of the alleged injury, and the medical opinion of Dr. Jack Marks that Nichols had been treated for an ongoing problem.
Without question, the information and documents before North American at the time of the denial were sufficient to establish at least an arguable or debatable reason for denying plaintiff's claim.
We agree with the trial judge that there was no genuine issue of material fact as to whether Nichols's fraud claim was barred by the statute of limitations, or whether North American exercised bad faith in denying Nichols's claim under the policy. Accordingly, the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.
[1] The one-year statute of limitations covering fraud actions, § 6-2-39, Code 1975, was repealed effective January 9, 1985, and those actions covered by that statute were transferred to § 6-2-38, the two-year statute. Act No. 39, 1984-85 Alabama Acts.
[2] Section 6-2-3 has also been amended to recognize that fraud actions are now governed by the two-year statute. See Act 39, 1984-85 Alabama Acts. | January 16, 1987 |
7773ff8f-ac22-4733-93ba-41950711148f | Ex Parte Gray | 686 So. 2d 250 | 1951248 | Alabama | Alabama Supreme Court | 686 So. 2d 250 (1996)
Ex parte Duane GRAY
Re Duane GRAY
v.
CROWN PONTIAC, INC., et al.
1951248.
Supreme Court of Alabama.
December 13, 1996.
*251 Charles M. Thompson of Thompson & Carson, P.C., Birmingham, for Petitioner.
John Martin Galese and Jeffrey L. Ingram of John Martin Galase, P.A., Birmingham, for respondents Crown Pontiac, Inc. and Shannon Pardue.
INGRAM, Justice.
Duane Gray petitions for a writ of mandamus directing the Jefferson County Circuit Court to vacate its order staying his action against Crown Pontiac, Inc., and Crown's salesman, Shannon Pardue, pending arbitration. Specifically, Gray contends that because Pardue was not a signatory to the contract containing the arbitration agreement, he had no standing to compel Gray to arbitrate.
Gray argues that a party cannot be required to submit to arbitration any dispute he has not agreed to submit, citing Ex parte Stallings & Sons, Inc., 670 So. 2d 861 (Ala. 1995). However, we consider the facts of Stallings to be clearly distinguishable from those of the present case. In Stallings, this Court did not allow arbitration to be forced against nonsignatories to the arbitration agreement. The petitioners in Stallings were contractors involved in constructing an addition to the Bullock County Hospital. Sherlock, Smith & Adams, Inc. (SS & A), was the architectural firm hired by the Bullock County Hospital Board to design the project and to assist in overseeing its construction. Stallings involved two contracts. The one between the hospital board and the petitioners contained the arbitration agreement; SS & A was not a signatory to that contract. The other contract was between the hospital board and SS & A, and there was no arbitration clause in that contract. The contract between the petitioners and the hospital board contained no provision that specifically required the petitioners to arbitrate their differences with SS & A. In fact, that contract between the hospital board and the petitioners specifically prohibited the petitioners from arbitrating their differences with SS & A. Clearly, those facts are different from the facts in Gray's case.
The arbitration agreement included in the "Retail Buyer's Order" that Gray signed reads as follows:
As the trial court noted in its order compelling arbitration, the thrust of Gray's complaint against Crown and Pardue is that Pardue, as Crown's agent, while acting within the line and scope of his agency, falsely represented the condition of the vehicle Gray was buying. Clearly, Gray's claim comes within the arbitration agreement, and that agreement is binding upon all the parties and is enforceable under the controlling law. See Ex parte Gates, 675 So. 2d 371 (Ala.1996); and see Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 239 S.E.2d 401 (1977) (holding that an employeean account representativeof Paine, Webber, who was not a signatory to the contract containing the arbitration agreement, was entitled to the benefit of that agreement). A party should not be able to avoid an arbitration agreement merely by suing an employee of a principal.
Gray has not carried the burden of proof imposed on one petitioning for the writ of mandamus; therefore, the petition is denied.
WRIT DENIED.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, and BUTTS, JJ., concur. | December 13, 1996 |
25d1de6d-c6fe-433d-8a04-c1a689236c3f | Coastal Concrete Co., Inc. v. Patterson | 503 So. 2d 824 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 824 (1987)
COASTAL CONCRETE COMPANY, INC.
v.
Thomas R. PATTERSON.
85-840.
Supreme Court of Alabama.
January 9, 1987.
Rehearing Denied February 20, 1987.
*825 Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, for appellant.
Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
BEATTY, Justice.
Appeal by defendant, Coastal Concrete Company, Inc. ("Coastal"), from a judgment against it based upon a jury verdict for plaintiff, Thomas R. Patterson, in plaintiff's action based upon fraud. We affirm.
The complaint consisted of two counts. Count Two became the victim of defendant's motion for a directed verdict; thus, only Count One was submitted to the jury. Count One alleged:[1]
The jury returned a verdict in favor of plaintiff and awarded $27,153.14 as damages.
The recitations of Count One contain many of the essential facts; however, some additions are necessary.
It appears that Patterson's claim in district court was for lost wages in the amount of $444.79, which included $20.00 in travel expenses. While this case was pending, Patterson, a concrete truck driver, was notified that his separate claim for unemployment compensation had been denied, based on his employer's statement that he had failed to clean off the build-up material *826 on his truck. Patterson, claiming extenuating circumstances, appealed from that ruling, and his appeal on the unemployment compensation claim was pending when his small claims case for lost wages came up for a hearing.
At the hearing in small claims court, Patterson appeared pro se, and Roland Snarr, an employee of Coastal, appeared for the company. A settlement was reached by the parties. According to plaintiff, he agreed to dismiss his lawsuit if Coastal would pay him half his last week's wages and have his unemployment compensation instated. The trial court, in fact, entered the following order in the case: "By agreementDef. to lift opposition to unemployment & pay pl. one half of wages and court costs." On the date of that entry, Patterson went to Coastal's Robertsdale office and signed a release that had been prepared for Coastal at the direction of one of its employees, Richard Summerville:
At the hearing on Patterson's appeal from the denial of his unemployment compensation claim, Richard Summerville appeared for Coastal. His testimony at the hearing on appeal, however, was consistent with that on which the original denial of unemployment compensation was based, i.e., that Patterson had been discharged for failure to keep his equipment clean. On that basis, Patterson lost his appeal, and this lawsuit ensued.
On appeal, defendant presents a number of issues concerning the trial court's denial of its motion for a directed verdict at the close of the evidence; its denial of defendant's motion for judgment notwithstanding the verdict or new trial; the plaintiff's failure to refund the consideration he received before his rescission of the release entered into by the parties; and the failure of plaintiff to prove actual damages. We will consider these issues seriatim.
Did the trial court err in denying defendant's motion for a directed verdict?
The answer to this question is dependent upon the presence or absence of "any evidence," or a scintilla thereof, of fraud. Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375, 376 (Ala.1985).
"Fraud" is defined as (1) a false representation (2) of a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981). If fraud is based upon a promise to perform or abstain from performing in the future, two additional elements must be proved: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, coupled with (2) an intent to deceive. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982).
The testimony bearing upon the existence of "any evidence" of fraud came from the testimony of Richard Summerville, from which we quote extensively here:
"Q. Would you read the note that the Judge put in the file there? Would you read that to the Jury?
"A. `6-24-83. By agreement, Defendant to lift opposition to unemployment and pay Plaintiff one-half of wages and court cost. Rebecca Wolf represents Plaintiff and will check with Coastal Concrete on lifting suspension. Otherwise court to enter judgment for either Defendant or Plaintiff for entire amount.' And initials.
"Q. It says on there `By agreement, Defendant to lift opposition to unemployment.' Is that what it said?
"A. Yes, it did.
"Q. And let me show you Plaintiff's Exhibit Number One and does that appear to be on Coastal Concrete Company letterhead?
*827 "A. Yes, it does.
"Q. Do you know who drew it?
"A. Diane White
"Q. Did she draw it at your direction?
"A. Yes, she did.
"Q. So you directed her to draw this agreement; is that correct?
"A. Yes, I did.
"Q. And does this say Coastal Concrete agrees to have my unemployment [instated] as soon as possible? Is that what the last line says?
"A. The last line, yes, sir.
"Q. And you directed her to prepare that; is that correct.
"A. Not in those words, I did not.
"Q. Well, you had better tell the Jury what words you told her to use then.
"A. To help him have his unemployment benefits [instated].
"Q. Well, that's what it says; doesn't it?
"A. It says, `Agrees to have my unemployment [instated] as soon as possible.'
"Q. Your lady prepared this; didn't she?
"A. Yes.
"Q. At your direction?
"A. Yes.
"Q. She was working for the company when she prepared it; wasn't she?
"A. Yes, sir.
"Q. Agent of the company?
"A. Yes, sir.
"Q. And that is what y'all drew up for Mr. Patterson to sign in return for dropping his lawsuit; is that correct?
"A. Repeat.
"Q. That is what you all drew up in return for him dropping his lawsuit; is that correct?
"A. Yes, that is correct.
"Q. Well, I want you to look over there at that Jury and tell them what you have done to help him get his unemployment [instated].
"A. I did everything that he asked me.
"When Ronnie came to the office, and I can't remember what date it was, but it was after this letter was signed. And asked me that particular day what I had done to help him to date and I, in return, asked him what he wanted me to do and he didn't know and I had never been through it before and I didn't know.
"Within the next few days, I received notice to appear and that is what I did. That is all I knew to do, was to show up at the hearing.
"Q. So you didn't do anything to help him; did you?
"A. I just told you, I showed up at the hearing.
"Q. Showed up at the hearing and testified that he wouldn't keep his truck clean and that he had plenty of time to do it; is that right?
"A. Certainly, I was under oath to tell the truth.
"Q. Did you tell him that you were going to say all of this at the time that you drew up the agreement?
"A. No, I didn't. I didn't know what the questions would be.
"Q. You didn't know what the questions would be, you just, then I guess, drew up the agreement and agreed not even knowing what you were going to do? Correct?
"A. That is correct. I didn't know what I was going to do.
"I told Ronnie that I would help him but I had never been faced with this before. I didn't know what steps to take.
"Q. You had never testified before in an unemployment hearing?
"A. Not in regard to this.
"Q. Not in regard to this but you have testified; haven't you?
"A. In one other case.
"Q. In one other case. Well, don't you know that if you go over there and testify to something bad about the person that it is not going to help them?
*828 "A. I didn't know what information they had on them. I didn't respond to the original inquiry from the State.
"Q. Who responded to that?
"A. Diane White.
"Q. And she works under you; doesn't she?
"A. Yes, she does.
"Q. And it was readily available to you; wasn't it?
"A. (Pause.)
"Q. Or was it?
"A. Was what?
"Q. The record with respect to this man's unemployment?
"A. Oh, yes.
"Q. It was readily available to you?
"A. Yes, sir.
"Q. It was readily available to you at the time y'all asked him to drop his lawsuit in return for y'all's little promise to him; wasn't it?
"A. Yes. We keep employee records.
"Q. So all you had to do was pick up the record and look and see what your company said about this man; didn't you? That's all you had to do; wasn't it?
"A. Repeat that, please.
"Q. All you had to do was pick up the records and see what your company said about the man on the first application; isn't that correct?
"A. Yes.
"Q. And you didn't do that; did you?
"A. I knew what had been put in there.
"Q. I thought you just said you didn't know what the response had been?
"A. I didn't know verbatim what the response had been but I knew what my secretary had put in there. I had given her reason for termination.
"Q. Okay. And did you think at the time you had this agreement drawn up that yourdid you think that information was going to help this man get his unemployment [instated]?
"A. I didn't know.
"Q. You didn't know but you agreed to help him anyway; didn't you?
"A. I agreed to help him.
"Q. And you didn't even know; did you?
"A. I didn't know what I could do to help him in that matter.
"Q. You didn't tell him that though; did you?
"A. Yes, I did.
"Q. When did you tell him?
"A. When he came by the office
"Q. After the agreement was already signed?
"A. Yes.
"Q. And after he had already dropped his lawsuit?
"A. (No response.)
"Q. Right?
"A. Yes, it was after the agreement was already signed.
"Q. Did he tell the truth while ago when he testified that you had reevaluated it and that you had decided that he probably didn't have time to clean his truck up?
"A. No, he didn't tell the truth.
"Q. He didn't tell the truth. So he lied about that. But y'all did have a conversation; didn't you?
"A. We had a conversation.
"Q. And you simply told him that you didn't know what you could do for him?
"A. I said that I would help him if I could and asked him what he had done up to date. And I didn't know what to do.
"In this particular situation, I didn't know what to do.
"Q. But you didn't state that when you asked him to drop his lawsuit; did you?
"A. (No response.)
"Q. Said you would help him; didn't you?
"A. That is right.
"Q. And evidently, Mr. Snarr agreed a little bit further. It says: `By agreement, *829 Defendant to lift opposition to unemployment.'
"Is that what it says?
"A. That is what it says.
"Q. But you knew at the time this agreement was made, did you not, ... what you had already told your secretary to put in that first response; is that correct?
"A. Repeat that.
"Q. You told us that you told your secretary, Ms. White, to put in the response to the unemployment thing, you had already told her what to put in there; hadn't you?
"A. No, she knew what to put in there, the reason for termination which was in his file.
"Q. How did she know?
"A. That's practice, that's policy at the
"Q. Who directed that to be put into the file?
"A. I directed that to be put into the file.
"Q. So you knew [why] he had been terminated?
"A. Yes.
"Q. And you knew that if you were called on to testify truthfully in front of the unemployment people that you had to tell them that he was terminated for misconduct; didn't you?
"A. If I had thought about that, yes, I would have known.
"Q. If you had thought about it.
But you didn't tell him at the time you got him to drop his lawsuit; did you?
"A. No, I didn't.
"....
"Q. You simply said we are going to help him.
"Well it really doesn't say that. It says, `Have the employment [sic] [instated].' It doesn't say anything about helping; does it?
"A. No.
"Q. Says it was going to have it [instated] and your lady prepared it at your direction; didn't she?
"A. That is right.
"Q. And when that was prepared, you knew why that was in the file? You knew why he had been terminated?
"A. Yes, I did.
"Q. Why didn't you tell him that is what your testimony would have to have been?
"A. It never entered my mind to tell him.
"Q. You knew what you were agreeing to do there; didn't you.
"A. To help him try to get his unemployment benefits [instated].
"Q. But you knew you couldn't do that; didn't you?
"A. No, I didn't know that.
"Q. You didn't know one way or the other; did you?
"A. I didn't know whether I could or couldn't but I would try to help him." (Emphasis added.)
The jury had before it this evidence and the testimony of the plaintiff, himself, who denied that he was given adequate time to clean his truck. The jury could have reasonably concluded from the evidence that Coastal agreed to withdraw its charge against plaintiff, to the end that his unemployment compensation would be instated in exchange for plaintiff's dropping his lawsuit. Indeed, the jury could have concluded that, having procured that action on plaintiff's part, Coastal, through Summerville and Snarr, knowing that plaintiff had dismissed his small claims case, obtained the release from him on the representation that it would take steps to have plaintiff's unemployment compensation instated, knowing at the time that it would not do so, with the intent to deceive him into releasing Coastal. Summerville clearly acknowledged his authorship of the release and its terms, but "didn't know what he was going to do," in spite of his personal knowledge of plaintiff's work record and of the grounds for his discharge. Thus, there *830 was evidence of fraud on Coastal's part as it is defined in our law, and the trial court was not in error in denying the defendant's motion for a directed verdict.
The same result obtains as to the trial court's denial of the defendant's motion for judgment notwithstanding the verdict or for new trial. A motion for J.N. O.V., like the motion for directed verdict, tests the sufficiency of the evidence, Wright v. Fountain, 454 So. 2d 520 (Ala. 1984), and requires the trial court to review its earlier ruling on the directed verdict motion. Having found some evidence of fraud, we affirm the trial court's ruling denying the defendant's motion for J.N. O.V. or for new trial.
Was plaintiff required to return the money he received under the release as a prerequisite to maintaining his action for fraud?
The longstanding rule in Alabama is that a defrauded releasor may affirm the release and sue for damages for the fraud without returning or tendering the consideration for the release. Mutual Savings Life Ins. Co. v. Osborne, 245 Ala. 15, 15 So. 2d 713 (1943). Thus, plaintiff here was not required to return the $153.14 received as consideration for the release.
Plaintiff's allegations of fraud pertained to the award of unemployment compensation, which had been denied because of the defendant's report of discharge for unsatisfactory job performance. For aught that appears, the removal of this contested reason would have allowed plaintiff to obtain compensation. This loss sustained by plaintiff amounted to more than nominal damages. Since at least nominal damages would have been proper, the jury was within its province to award punitive damages. Mid-State Homes v. Johnson, 294 Ala. 59, 311 So. 2d 312 (1975); Welch v. Evans Bros. Construction Co., 189 Ala. 548, 66 So. 517 (1914).
Having addressed the issues dispositive of this appeal, we need not address other issues of no consequence thereto.
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
[1] Throughout Count One, plaintiff used the term "reinstate" when, from the facts alleged, it appears the proper term to use is "instate," which we have so substituted where necessary throughout this opinion. | January 9, 1987 |
e4eeb5b3-e16c-4f99-8ca3-be90b43feb5e | Ex Parte Maddox | 502 So. 2d 794 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 794 (1987)
Ex parte Richard M. MADDOX.
(Re: Richard M. Maddox v. State of Alabama).
86-151.
Supreme Court of Alabama.
January 30, 1987.
*795 David Cromwell Johnson, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
Prior reports: 502 So. 2d 779 (1985), 502 So. 2d 786, 502 So. 2d 790 (1986).
ADAMS, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 272, 280 So. 2d 155 (1973).
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. | January 30, 1987 |
7351c6fa-70c4-40c0-b2a3-0897fad8ca4f | Welch v. Houston County Hosp. Bd. | 502 So. 2d 340 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 340 (1987)
James WELCH, Administrator Of The Estate Of Shirley Welch, Deceased
v.
HOUSTON COUNTY HOSPITAL BOARD.
85-677.
Supreme Court of Alabama.
January 2, 1987.
Cada M. Carter of Carter & Hall, Dothan, and P. Russell Tarver, Birmingham, for appellant.
*341 Michael K. Wright of Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellee.
BEATTY, Justice.
This is an appeal by James Welch, as administrator of the estate of Shirley Welch, deceased, from a summary judgment entered in favor of the defendant, Houston County Hospital Board, in Mr. Welch's action for the wrongful death of Mrs. Welch. We reverse and remand.
When she died, Mrs. Welch was a patient at the Southeast Alabama Medical Center, which is owned and operated by the defendant, Houston County Hospital Board ("Hospital Board"). She had been diagnosed as having developed cervical cancer. Mrs. Welch was admitted to the hospital on July 29, 1979, and, on July 30, Dr. Rufus Clyde Smith, Jr., performed an abdominal hysterectomy on her. She appeared to be having a normal recovery until the morning of July 31, 1979, when she suffered a grand mal seizure. After this seizure, Mrs. Welch was generally stabilized, although no central nervous system function was ever detected. Mrs. Welch died on August 3, 1979. An autopsy revealed hypoxic changes in the brain.
Thereafter, the plaintiff, in his capacity as administrator, filed this action for wrongful death. Named as defendants were the Hospital Board, three drug manufacturers, and other fictitiously named defendants. All defendants were subsequently dismissed except the Hospital Board.
In his complaint, the plaintiff alleged that the Hospital Board "was negligent in its care and treatment of plaintiff's decedent in that it failed to exercise that degree of reasonable care, skill, and diligence as used by hospitals generally in the community." In response to the Hospital Board's motion for a more definite statement, plaintiff alleged the following:
Following the exchange of certain discovery requests, the Hospital Board filed its motion for summary judgment, alleging "that there is no genuine issue as to any material fact, and this Defendant is entitled to judgment as a matter of law." This motion was based on the pleadings and the Hospital Board's answers to interrogatories propounded by the plaintiff and two of the drug manufacturers. In responding to the allegations of the plaintiff's complaint against it, the Hospital Board argued in its motion that it had "answered interrogatories identifying each drug administered, the physician prescribing the same, the quantity administered pursuant to physician's order, and the hospital personnel involved in such administration," and argued further that "[i]t is undisputed that all medications administered were administered in the appropriate amounts or quantity, pursuant to the physician's order."
In opposition to the Hospital Board's motion for summary judgment, the plaintiff filed the affidavit of Bertie Enfinger, the mother of plaintiff's decedent, *342 Shirley Welch. That affidavit stated, in pertinent part:
Apparently, at the hearing on the motion, the plaintiff also offered the deposition of Dr. Rufus Clyde Smith, one of Mrs. Welch's attending physicians, in opposition to the motion for summary judgment. The trial judge entered an order granting the Hospital Board's motion, wherein he stated:
This appeal followed. We hold that summary judgment was improper in this case. None of the evidence material to the issues in this case, offered either in support of or in opposition to the summary judgment motion, would be admissible at trial and, therefore, that evidence cannot properly be considered on a motion for summary judgment.
While Rule 56, A.R.Civ.P., permits evidence in the form of depositions and answers to interrogatories to be submitted in support of, or in opposition to, a summary judgment motion (see Vulcan Freight Lines v. South Carolina Ins. Co., 446 So. 2d 603, 604-05 (Ala.1982)), that evidence must, nevertheless, conform to the requirements of Rule 56(e) and be admissible at trial. Griffin v. Little, 451 So. 2d 284, 286 (Ala.1984); Day v. Merchants National Bank of Mobile, 431 So. 2d 1254 (Ala.1983); Whatley v. Cardinal Pest Control, 388 So. 2d 529, 532 (Ala.1980). That is, the content of the deposition or answers to the interrogatories must be asserted on the personal knowledge of the deponent or person giving the answers, must set forth facts that would be admissible in evidence, and must show affirmatively that the deponent or person giving the answers is competent to testify to the matters asserted. Vulcan Freight Lines v. South Carolina Ins. Co., supra; Morris v. Morris, 366 So. 2d 676, 678 (Ala.1978); Wright, Miller & Kane, 10A Federal Practice & Procedure § 2722, pp. 48-52 (1983). These requirements are mandatory. Arrington v. Working Woman's Home, 368 So. 2d 851, 854 (Ala.1979); Oliver v. Brock, 342 So. 2d 1, 4-5 (Ala.1976). Matters stated based only upon information and belief are essentially hearsay and are, therefore, insufficient. Vulcan Freight Lines v. South Carolina Ins. Co., supra; Oliver v. Brock, supra.
Furthermore,
Powell v. Mullins, 479 So. 2d 1119, 1120 (Ala.1985). Thus, although Mrs. Enfinger's affidavit can be considered as evidence of what happened on the morning of Mrs. Welch's seizure (because she witnessed the events), the Hospital Board is correct in its argument that Mrs. Enfinger's statement, "[I believe] she was given the wrong medication," *343 is inadmissible as evidence of that alleged fact. There is nothing in the record to show that Mrs. Enfinger possessed the qualifications or expertise to allow her to draw this conclusion from what she observed. Nor is there any other evidence to show that Mrs. Enfinger had specific knowledge that the medication administered to Mrs. Welch minutes before her seizure was the wrong medication.
Notwithstanding Mrs. Enfinger's affidavit, the substantive issue in this case remains whether the Hospital Board, as the moving party, met its burden of proving that no genuine issue of material fact exists with respect to whether it properly administered to Shirley Welch only those drugs prescribed by her physicians. The Hospital Board contends it met this burden, relying on pertinent portions of Dr. Smith's deposition and the Hospital Board's answers to interrogatories which were given and signed by its "Administrator." Without question, the matters material to this case, asserted in the answers and deposition, are based almost exclusively on the medical chart and hospital records of the plaintiff's decedent, Mrs. Welch. Neither these medical records nor sworn or certified copies thereof were ever made a part of this record. In Oliver v. Brock, supra, at 4-5, this Court held as follows:
(Emphasis added.) Accord, Osborn v. Johns, 468 So. 2d 103, 108 (Ala.1985).
As the plaintiff correctly points out in his brief, there is nothing contained in the Hospital Board's answers to plaintiff's interrogatories which affirmatively shows that its administrator had personal knowledge of the facts pertaining to the drugs administered to Mrs. Welch, nor is it otherwise conceivable from the adduced facts that he would have such personal knowledge. Thus, without the hospital records themselves, these answers to interrogatories "purport[ing] to describe ... [the] substance or ... contents [of these records] are insufficient," and cannot be properly considered on summary judgment. Oliver v. Brock, supra (quoting Wright & Miller & Kane, Federal Practice and Procedure: Civil § 2722).
Relying on Dr. Smith's deposition, the Hospital Board states that the testimony of Dr. Smith establishes that the plaintiff received only the medications prescribed and received them in the appropriate doses. It is obvious from Dr. Smith's deposition that his "findings" that Mrs. Welch was not given the wrong drug or improper amounts of drugs were based on his review of her medical chart or on interviews with personnel, and not on his own personal knowledge of what drugs the hospital actually administered, or in what dosage they were given, or at what dosage interval they were administered. Nor were these findings by Dr. Smith based on his own examination of Mrs. Welch after her seizure:
(Emphasis added.) Neither the chart nor any statements in the form of affidavits or depositions by the personnel interviewed by Dr. Smith are contained in this record. Thus, the representations in the chart and by the personnel, relied on by Dr. Smith, are hearsay. Consequently, Dr. Smith's deposition, describing, interpreting, or relying upon the contents or substance of the chart or his interviews, is also inadmissible, and, therefore, cannot be properly considered on motion for summary judgment.
It is important to note that it is not the admissibility of the hospital charts or records themselves that is at issue in this case. Provided the proper predicate is laid, the records themselves would be admissible. See Rule 44, A.R.Civ.P.; Ikner v. Miller, 477 So. 2d 387 (Ala.1985); Wilson v. State, 243 Ala. 1, 8 So. 2d 422 (1942); Sellers v. Doctors Medical Center, 402 So. 2d 1021 (Ala.Civ.App.1981); Carroll v. State, 370 So. 2d 749 (Ala.Crim.App.), cert. denied, 370 So. 2d 761 (Ala.1979). See also, Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 158 So. 2d 667 (1963). Rather, at issue in this case is the admissibility vel non of the Hospital Board's answers to interrogatories, which were given by the Hospital Board's administrator based, in pertinent part, on information taken from Mrs. Welch's hospital records. Also at issue is the admissibility of Dr. Smith's "findings" with respect to whether the hospital properly administered to Mrs. Welch only those drugs prescribed by her physicians, which "findings" are clearly based on his review of her hospital records. It bears repeating that, because the hospital records were relied upon by Dr. Smith and the Hospital Board's administrator, they had to be exhibited; without them, the deposition and the answers to interrogatories are insufficient to establish the Hospital Board's proper administration of proper drugs. Oliver v. Brock, supra.
Another point to be emphasized is that it is the Hospital Board's negligence that is at the heart of this case, and not that of the attending physicians. Furthermore, it is axiomatic that, on summary judgment, this Court is obliged to view the evidence in the light most favorable to the non-moving party, as well as to draw all reasonable inferences in that party's favor. It is quite clear from Dr. Smith's deposition that he was not stating, in his expert opinion, that the hospital properly administered the proper drugs to Mrs. Welch. Nor did Dr. Smith state that, in his expert opinion, Mrs. Welch's seizure and subsequent death were not caused either by the hospital's administration of an improper drug or by its improper administration of a proper drug. Indeed, he deposed that he had no opinion as to the cause of Mrs. Welch's seizure, and he merely said, in essence, that, from his review of her chart and his interviews with hospital personnel, he found no evidence that Mrs. Welch was *345 given "anything other than what was prescribed, in the doses [prescribed]."
Nevertheless, even if this Court, on summary judgment, liberally interpreted Dr. Smith's statement, "I certainly can't connect the care that she received with the outcome that resulted," as his expert opinion that the Hospital Board did not violate its standard of care in its treatment of Mrs. Welch, such an interpretation in favor of the Hospital Board, the moving party, would be flagrantly violative of the above stated rule that this Court must view the evidence in the light most favorable to the non-moving party. Moreover, even assuming that this statement does amount to an expert opinion, it, too, would be inadmissible, inasmuch as it is an expert opinion based on facts (i.e., hospital records and unverified statements of hospital personnel) not in evidence and not within Dr. Smith's personal knowledge.
In Thompson v. Jarrell, 460 So. 2d 148, 150 (Ala.1984), also a medical malpractice case, this Court stated the general rule in this jurisdiction with respect to the proper factual bases for expert testimony:
(Emphasis added.) This rule is also stated in Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974), quoted from in part in Thompson v. Jarrell, supra:
(Emphasis added.) Most recently, in Otwell v. Bryant, 497 So. 2d 111 (Ala.1986), another medical malpractice case, this Court reiterated the general rule set out above, and affirmed the trial court's ruling that the medical expert could not express an opinion based on medical records not in evidence:
Thompson v. Jarrell, 460 So. 2d 148 (Ala. 1984)....
(Emphasis added.) 497 So. 2d at 116.
Moreover, while expert testimony would be necessary to establish that Mrs. Welch's seizure and subsequent death could have been caused by the improper administration of drugs, expert medical testimony is not required for the factfinder to determine whether the hospital did, in fact, improperly administer drugs to Mrs. Welch. Such a factual determination is not beyond the ken of the average layman and should be left to a jury. Thus, it would be improper to allow Dr. Smith to give his "expert opinion" that the hospital did not improperly administer drugs to Mrs. Welch. See Thompson v. Jarrell, supra, where this Court held the following:
("Voluntary" emphasized in original; other emphasis added.) 460 So. 2d at 151.
Because none of the evidence of record which tended to establish that the Hospital Board properly administered proper drugs to Mrs. Welch is admissible, summary judgment should not have been granted in this case.
Plaintiff also alleged that the Hospital Board "negligently failed to monitor the condition of plaintiff's decedent during post operative recovery period and negligently failed to treat plaintiff's decedent" when she had her grand mal seizure. Just as with plaintiff's allegation concerning the Hospital Board's proper administration of drugs, there is no admissible evidence of record establishing that the Hospital Board did indeed (1) properly monitor the condition of plaintiff's decedent during the post operative recovery period and (2) properly treat plaintiff's decedent at the time she had the seizure. Therefore, summary judgment was improper as to these claims as well.
Based on the foregoing, we hold that the summary judgment is due to be, and it is hereby, reversed, and this case is remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX and ALMON, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
The hospital records were not exhibits; without them, the deposition and the answers to interrogatories are insufficient to establish the proper administration of proper drugs. I would reverse and remand on this and this alone. | January 2, 1987 |
6c9b3259-9a18-4b0f-bc91-2f8f1b81bb5f | Bratton v. City of Florence | 688 So. 2d 233 | 1950701 | Alabama | Alabama Supreme Court | 688 So. 2d 233 (1996)
Randy O. BRATTON and Alice F. Bratton
v.
CITY OF FLORENCE.
1950701.
Supreme Court of Alabama.
December 20, 1996.
Robert L. Gonce and Melissa Moreau of Gonce, Young & Sibley, Florence, for appellants.
William T. Musgrove, Jr., City Atty., Florence, for appellee.
ALMON, Justice.
Randy and Alice Bratton appeal from a summary judgment for the City of Florence in their action against the City seeking damages pursuant to 42 U.S.C. § 1983. The Brattons argue that the City violated their rights to equal protection of the law when it denied them permission to build an apartment complex. They argue that the zoning ordinance is unconstitutional because, they say, it delegates unbridled discretion to the Planning Commission, and they further argue that the Commission and the City Council acted arbitrarily and capriciously in denying their building permit.
The Brattons purchased land in Florence located in an "R-2" zone, which allows construction of apartments. Apartment complexes bordered the Brattons' property on both the north and the south. At the time of the purchase, City officials told the Brattons that they would be able to proceed with their plan to build a seven-unit townhouse complex on the property. While the Brattons' application for a building permit was pending, the City of Florence adopted an ordinance creating an "R-D" (redevelopment) zone, which required approval from the Planning Commission for building any structure other than a single-family residence. The ordinance specified that the Planning Commission, before *234 granting approval, was to consider what was
The Brattons' property was within this R-D zone, and the Planning Commission denied their application by a 5-4 vote. While the R-D zone was in effect, the Planning Commission approved a 20- to 30-unit apartment complex located in the R-D zone and on the same street as the Brattons' proposed building. This approved complex also had apartments on both its north and south sides. City Councilman Dick Jordan testified in deposition that the council had feared that the Brattons' proposed development would cause traffic congestion, but he said that the larger complex did not pose such a problem, despite the fact that the two projects were located on the same street. Councilman Jordan did not attempt to distinguish between the Brattons' project and the larger projects on any of the other considerations set out in the R-D ordinance.
On March 16, 1994, the Brattons filed a complaint alleging that the ordinance unconstitutionally gave the Planning Commission unbridled discretion to approve or disapprove projects. The Brattons also claimed that the City of Florence had acted arbitrarily and capriciously in denying their building permit and thus had denied them equal protection. They amended the complaint on August 31, 1994, to add a claim based on the "Takings Clause" of the Fifth Amendment and a state law claim that they had a vested right in the continuation of the previous zoning classification. Those subsequent claims have not been raised or argued on this appeal. On January 3, 1995, the Brattons moved for a partial summary judgment on the issue of the constitutionality of the ordinance. The City opposed the motion and moved for a summary judgment. After the parties had filed briefs in support of and in opposition to the motions, the circuit court entered an order, on January 12, 1996, denying the Brattons' motion for a partial summary judgment and granting the City's motion for a summary judgment.
The threshold issue, that of the constitutionality of the ordinance vesting the Planning Commission with discretion to approve proposed building projects, is not properly before this Court because the Brattons did not notify the attorney general's office of their challenge to the constitutionality of the ordinance. See Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1990). Section 6-6-227, Ala.Code 1975, provides that the attorney general shall be made a party when a state statute or a municipal ordinance is challenged on constitutional grounds. If the notice is not given, the courts will not have jurisdiction to resolve any claims based on the challenge to the constitutionality of the statute or ordinance. Fairhope Single Tax Corp. v. Rezner, 527 So. 2d 1232 (Ala.1987).
Any challenge to the constitutionality of this ordinance notwithstanding, if the commission has exercised its discretion in an arbitrary, capricious, or discriminatory manner, then the Brattons may have been denied equal protection of the law. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.1989). In Greenbriar, the Court of Appeals for the Eleventh Circuit specifically authorized the use of 42 U.S.C. § 1983 as a remedy for violations of any constitutional rights, including the right to equal protection of the law, in the context of challenging a municipality's decision as to zoning. Id. at 1572. See also Church of Jesus Christ of Latter-Day Saints v. Jefferson County, Ala., 721 F. Supp. 1212 (N.D.Ala.1989); Smith v. City of Gardendale, 508 So. 2d 250 (Ala.1987). A zoning authority's action in a particular case may be arbitrary and capricious if it bears no substantial relationship to the objects of the police power. BP Oil Co. v. Jefferson County, 571 So. 2d 1026, 1028 (Ala. 1990).
The circuit court held as a matter of law that the City had not acted arbitrarily or capriciously in applying this R-D ordinance to the Brattons and in denying their application. *235 When reviewing a summary judgment, this Court determines whether there was a genuine issue of material fact and, if not, whether the summary judgment movant was entitled to a judgment as a matter of law. Ala. R. Civ. P. Rule 56(c).
There are disputed facts regarding the treatment of the Brattons' initial application for a building permit. For the purposes of this review, the evidence is viewed in the light most favorable to the nonmovants, the Brattons. Dothard v. Alabama State Department of Human Resources, 613 So. 2d 353, 356 (Ala.1993). Supporting their allegation by the deposition testimony of Kenneth McAfee, a building official for the City of Florence, the Brattons allege that City Councilman Jordan took steps to delay action on their permit until the zoning of the area in question could be changed from R-2 to R-D. In fact, Jordan admits that he had a conversation with McAfee about delaying the Brattons' application pending enactment of the R-D ordinance. This evidence could support a finding of arbitrariness and capriciousness, and thus constitutes substantial evidence in opposition to the City's motion for summary judgment.
Other assertions by the Brattons similarly demonstrate that the City was not entitled to a judgment as a matter of law. For instance, there is evidence that the Planning Commission issued a permit for an apartment complex in the R-D zone that was to be not only much larger than the Brattons' proposed development, but also located in the immediate vicinity. This approval took place while the R-D zone was in effect.
Also, the record shows that another proposal, by a Mr. Smith, was approved for development before the R-D zone went into effect. The record is not clear as to whether Smith's application was submitted before the Brattons' application, but Smith's application was not delayed until the R-D zoning ordinance was enacted. This fact could support an inference that actions were taken to delay the Brattons' approval while no action was taken to delay Smith's approval; such a finding would indicate discriminatory treatment of the Brattons.
The Brattons should have an opportunity to convince a factfinder that this set of circumstances shows arbitrary and capricious treatment by the City. The larger development was located near the Brattons' proposed development, and there is no showing of Planning Commission criteria that could be used to distinguish between the two developments. These facts could cause a factfinder to find that the City's proffered reasons for denying the Brattons' permit were in large part pretextual. If this were the finding, a factfinder could view this as evidence that the Brattons were discriminated against, in violation of their right to equal protection of the law. A governing body may not apply a law dissimilarly to people who are similarly situated. Swann v. City of Graysville, 367 So. 2d 952, 954 (Ala.1979). Swann involved the disparate application of a city ordinance banning the sale of alcoholic beverages within 500 feet of a church, school, park, or playground. Id. at 953. This Court held that the issuance of alcohol sales permits to other licensees while denying such a permit to Mrs. Swann violated her right to equal protection of the law. Id. at 954.
The issue of arbitrary and capricious treatment is implicated in at least two instances in this case. The City could be found to have acted arbitrarily and capriciously if it is found to have wrongfully delayed consideration of the Brattons' pending building permit for the purpose of enacting the R-D ordinance so it could then deny the Brattons permission to build their proposed apartment complex. Furthermore, if the City of Florence is enforcing its zoning ordinance in a manner that allows approval of a 30-unit apartment complex while a similar development of one-fourth that size is denied approval, with no articulable basis for the disparate treatment, then the Brattons could recover under their § 1983 claim on the ground that the conduct bears no substantial relationship to the objects of the police power. Even assuming that the stated goals of the R-D ordinance are valid objects of the City's police power, the individual decisions of the Planning Commission are still subject to judicial scrutiny and must conform to those goals. The Brattons presented substantial evidence creating genuine issues of *236 material fact. Thus, the City was not entitled to a judgment as a matter of law. The judgment is reversed.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. | December 20, 1996 |
64dd820b-7597-489f-b187-c55e1c92396a | Ex Parte Weyerhaeuser Co., Inc. | 702 So. 2d 1227 | 1950022 | Alabama | Alabama Supreme Court | 702 So. 2d 1227 (1996)
Ex parte WEYERHAEUSER COMPANY, INC., and Thomas Webb.
(In re Willia Dean Lawrence SEWELL, as Trustee of the Bessie Maddox Lawrence Trust v. Thomas WEBB and Weyerhaeuser Company).
1950022.
Supreme Court of Alabama.
November 22, 1996.
Rehearing Denied February 21, 1997.
*1228 John A. Owens of Owens & Carver, Tuscaloosa; and Sandra C. Guin of Phelps, Jenkins, Gibson & Fowler, Tuscaloosa, for petitioners.
Robert F. Prince and Silas G. Cross, Jr., of Prince, Poole & Cross, P.C., Tuscaloosa, for respondent.
HOOPER, Chief Justice.
On November 6, 1991, Willia Dean Lawrence Sewell sued Thomas Webb and the Weyerhaeuser Company, Inc., alleging that Webb and Weyerhaeuser had unlawfully entered 37 acres of land and cut down or otherwise destroyed trees, saplings, seedlings, shrubs, and other plant life. Sewell sought $100,000 in compensatory damages, claiming that Webb and Weyerhaeuser's trespass had damaged the land. Sewell also sought $500,000 in punitive damages, claiming that the defendants' conduct had been willful, wanton, oppressive, or reckless.
At the close of the evidence, the trial court directed a verdict in favor of Sewell. The jury awarded Sewell $35,000 in compensatory damages and $10,000 in punitive damages. Sewell filed a post-trial motion for a new trial and additur. After conducting a hearing, the trial court denied the plaintiff's motion.
Sewell appealed to the Court of Civil Appeals, raising two issues: (1) Whether the trial court abused its discretion and thereby erred in denying her challenges for cause as to three prospective jurors; and (2) Whether the trial court abused its discretion and erred to reversal in failing to set aside the jury's punitive damages verdict and in not granting a new trial. The Court of Civil Appeals held that the trial court had abused its discretion by not granting Sewell's motions to strike the three jurors for cause. Sewell v. Webb, 702 So. 2d 1222 (Ala.Civ.App.1995). We granted the defendants' petition for certiorari review.
Before this Court can address the issue of the challenged jurors, it must consider a preliminary question of procedure. Should the Court of Civil Appeals have addressed this issue at all? Sewell, the plaintiff, prevailed in the trial court; it was she who on appeal raised the issue of the challenged jurors. Alabama caselaw is clear that a party who prevailed in the trial court can appeal only on the issue of adequacy of damages awarded. DeBardeleben v. Tynes, 290 Ala. 263, 276 So. 2d 126 (1973); Beatty v. McMillan, 226 Ala. 405, 147 So. 180 (1933); Nichols v. Perryman, 615 So. 2d 636 (Ala.Civ. App.1992); Cleveland v. Gilbert, 473 So. 2d 1075 (Ala.Civ.App.1985). We, therefore, reverse the judgment of the Court of Civil Appeals.
In Nichols, supra, the jury returned a verdict for the plaintiff, who then moved for a new trial based an alleged inadequacy of the damages award. The motion was denied. On appeal, the plaintiff raised three issues one relating to the claimed inadequacy of the compensatory damages; one relating to evidence; and one relating to the constitutionality of the law prohibiting additur. The Court of Civil Appeals held that because the plaintiff had prevailed in the trial court, the only issue that could be considered on appeal was the adequacy of the compensatory damages. Nichols, 615 So. 2d at 637.
Sewell prevailed in the trial court. Therefore, the issue whether the trial court erred in failing to strike the three jurors for cause was improperly considered by the Court of Civil Appeals. Sewell also moved for a new trial on the basis that the jury's punitive damages award of $10,000 was against the weight of the evidence. Sewell claims the defendants acted wantonly and/or willfully, and, therefore, that the punitive damages award should be higher. After a hearing on the motion for a new trial, the trial judge denied her motion. On appeal, Sewell claimed the case should be remanded for a hearing pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), because the trial court failed to set forth in the record its reasons for denying her motion for a new trial. The Court of Civil Appeals stated that if it were not reversing the judgment because of the trial court's ruling regarding the challenged *1229 jurors, then it would have remanded for a Hammond hearing.
There is no need for the trial court to hold a Hammond hearing.
Lowder Realty Co. v. Sabry, 542 So. 2d 1240, 1242 (Ala.1989). Sewell's argument here is not that the punitive damages award was excessive, but that it was inadequate. A party does not have a right to a Hammond hearing on the question of the adequacy of punitive damages. In regard to punitive damages, the purpose of the Hammond hearing is to protect a defendant against due process violations arising from an award of excessive damages. "[T]he purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future...." Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala.1989). See also Life Insurance Co. of Georgia v. Johnson, 684 So. 2d 685 (Ala.1996), rev'd on other grounds, ___ U.S. ___, 117 S. Ct. 288, 136 L. Ed. 2d 207 (1996); Adams v. Robertson, 676 So. 2d 1265, 1291 (Ala.1995); Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910); Comer v. Age-Herald Publishing Co., 151 Ala. 613, 44 So. 673 (1907). The judgment of the Court of Civil Appeals is reversed and the cause is remanded for that court to reinstate the judgment of the trial court.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON, and COOK, JJ., concur.
BUTTS, J., dissents. | November 22, 1996 |
a91e2fd1-0664-471f-9d0b-1df219110ce3 | Lawson v. Cagle | 504 So. 2d 226 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 226 (1987)
William S. LAWSON
v.
Dewayne CAGLE.
85-684.
Supreme Court of Alabama.
January 23, 1987.
Rehearing Denied March 20, 1987.
Charles E. Sharp and Mac B. Greaves of Sadler, Sullivan, Sharp & Stutts, Birmingham, and Jerry W. Jackson, Haleyville, for appellant.
Bill Thomason, Bessemer, for appellee.
C.R. McRae, Pascagoula, Miss., for amicus curiae Mississippi Trial Lawyers Assoc.
William H. Atkinson, John H. Bentley, and James K. Davis of Fite, Davis, Atkinson & Bentley, James Clark Cashion and Bill Fite, Hamilton, and H. Neal Cook, Samuel L. Masdon III, and Hobson Manasco, Jr., Haleyville, and Jerry F. Guyton, Nelson Vinson, and Oliver Frederick Wood of Vinson & Guyton, and Charles Harry Green, Hamilton, amici curiae in support of appellant Lawson's position.
PER CURIAM.
The defendant is an attorney; the plaintiff is a former client of the defendant's. This is a fraud action, not a legal malpractice action. The jury awarded the plaintiff $2,500,000.
The pertinent facts are as follows: The plaintiff was seriously injured in an accident which occurred in Mississippi in July of 1972. Plaintiff obtained Alabama counsel in November 1972. In July 1977, five years after the accident, Alabama counsel contacted the defendant, an attorney of stature in Mississippi, to assist him in the plaintiff's case. Suit was filed in Mississippi *227 in the summer of 1978. The suit was dismissed by the trial court on June 12, 1979. Defendant and plaintiff's Alabama counsel had a disagreement about how then to proceed. The fraud alleged in the present suit was the representation allegedly made to the plaintiff by the defendant to get the plaintiff to discharge his Alabama counsel and to allow the defendant to have sole control of the litigation, after the suit had been dismissed.
What the representation was depends upon whether we accept the plaintiff's testimony at deposition or at trial, for it varies.
At deposition, the plaintiff testified that the defendant did not tell the plaintiff that the defendant could definitely get the case reinstated in court, but that if he could get it before a jury, the defendant guaranteed the plaintiff a million dollars: "He [defendant] said that if we could get it in court that he said that he could guarantee me a million dollars, you know and if we can get it in front of a trial, a jury." "[I]f he could get it before a jury ... he would guarantee me a million dollars." "He didn't tell me definitely that he could [get it back into court]." "[H]e didn't say for certain." "[H]e wasn't absolutely [sic]. He didn't tell me definitely that he could get it in court." (Emphasis added.) These were the only statements before the trial court when it overruled defendant's motion for summary judgment. At trial plaintiff testified that the defendant told the plaintiff: "Dewayne I will promise you I can get it into court. I have done talked to the judge, and I will promise you a million dollars, your part, and he said `It will not be no year or two like you have been having to wait.'"
Plaintiff must prove that the defendant made an untrue statement concerning a material existing fact. A material fact is one which would induce the plaintiff to take action. Bank of Red Bay v. King, 482 So. 2d 274, 282 (Ala.1985). Clearly, there was evidence that the statement induced the plaintiff to discharge his Alabama attorney and proceed in the manner recommended by the defendant. An "existing fact" means what this phrase implies. Normally, it does not encompass a promise of future performance. Russellville Production Credit Ass'n v. Frost, 484 So. 2d 1084, 1086 (Ala.1986); Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80 (Ala.1983).
A promise of future performance can support a cause of action for misrepresentation, if the plaintiff produces evidence, direct or circumstantial, that the defendant, at the time the promise was made, did not intend to perform. Russellville Production Credit Ass'n v. Frost, supra. There was direct evidence that the defendant knew that the plaintiff's cause of action was hopeless, worthless, at the time the representation was made, so the mere fact that the remark related to future performance would not defeat plaintiff's cause of action.
Normally, an "existing" fact does not include an opinion (Hutchins v. State Farm Mutual Automobile Ins. Co., 436 So. 2d 819, 824 (Ala.1983); Lucky Manufacturing Co. v. Activation, Inc., 406 So. 2d 900, 905 (Ala.1981); Harrell v. Dodson, 398 So. 2d 272, 273 (Ala.1981); Ray v. Montgomery, 399 So. 2d 230, 232 (Ala.1980)); or a prediction (W. Keeton, W. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts, n. 6, § 109, at 762 (5th ed. 1984): "Ordinarily a prediction as to events to occur in the future is to be regarded as a statement of opinion only, on which the adverse party has no right to rely"). However, a client who asks the opinion of his attorney on a point of law may assume that the attorney has special knowledge of the law and is entitled to a honest opinion from him on which the client may justifiably rely. 3 Restatement (Second) of Torts, p. 99, § 545 (1976).
Neither attorneys, nor trial judges, nor jurors, nor clients can know the results of litigation until after the deliberations of an unbiased trier of fact. The value, if any, of this lawsuit is determined by the trier of fact solely on the law and the facts admitted into evidence. Therefore, the amount that a client will receive when his *228 or her case is finally concluded is something that an attorney cannot know, and the expression of such an opinion or prediction by an attorney is something on which no client has a right to rely. Regardless of whether the attorney represents this as an opinion or as a fact, it is not of a character which would justify a reasonable reliance, for this could not be known and the client must know that this could not be known unless something had been done to pervert the orderly administration of justice.
Clearly, in the plaintiff's deposition testimony, the defendant did no more than make a prediction, a conditional prediction, relating to a future event (a million dollar verdict), which itself was contingent upon the occurrence of a future event (getting the case before a jury). This was not a representation of a material existing fact, which is the foundation stone of a cause of action for misrepresentation/fraud. Likewise, the million dollar figure was mere "puffery," which does not constitute actionable fraud, Lucky Manufacturing Co. v. Activation, Inc., supra; a mere opinion of value (amount which plaintiff would receive from this litigation), which does not constitute actionable fraud. Lake v. Security Loan Ass'n, 72 Ala. 207 (1882). Therefore, the trial court committed reversible error when it overruled the defendant's motion for summary judgment, since there was no evidence as to one of the essential elements of plaintiff's cause of action. Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986); Harbison v. Albertville National Bank, 495 So. 2d 1084 (Ala.1986).
The plaintiff had no right to rely upon the defendant's alleged statements that plaintiff testified to at trial. He could not reasonably do so. The amount of any recovery plaintiff might receive could be known by the defendant only if the proper administration of justice had been perverted. The trial court, having erred in denying summary judgment, erred again in not granting defendant's motion for a directed verdict, and then in not granting a JNOV.
It is prudent to reiterate that this is not a legal malpractice action, but a fraud action.
The judgment is reversed and judgment rendered for the defendant.
REVERSED AND JUDGMENT RENDERED.
TORBERT, C.J., and JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
MADDOX, ADAMS and HOUSTON, JJ., concur specially.
MADDOX, Justice (concurring specially).
I concur in the result reached because I believe that Cagle failed to prove his fraud claim, but by concurring to reverse this judgment, I should not be understood as holding that a fraud claim would never be appropriate against an attorney. This Court has allowed the maintenance of fraud actions against individuals in varying circumstances, and there can be a case where a fraud action could be proved against an attorney,[1] but I do not believe this is one of those cases.
The thrust of Cagle's fraud suit against Lawson was his allegation that Lawson made an unconditional or absolute promise that if Cagle would fire Lanny Vines, he (Lawson) would get the suit against International Harvester reinstated in the federal district court in Mississippi, and would obtain a verdict in Cagle's favor of one million dollars.
Although there is some difference between the substance of the alleged misrepresentation as set out in Cagle's deposition testimony and as set out in his testimony at trial, as is pointed out in the majority opinion, at trial Cagle stated the substance of the alleged representation Lawson made to him as follows:
In order to prevail on his fraud claim, Cagle had to prove a false representation of a material existing fact upon which he relied, and prove that he suffered damages as a proximate result of that misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981). Furthermore, since the fraud claim is based upon a promise to perform or abstain from performing in the future, Cagle had to prove also that at the time Lawson made the promise to perform the act, he had no intention to do so and had an intent to deceive Cagle. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982).
"Fraud" has been described as "a term so vague that it requires definition in nearly every case." Prosser and Keeton on the Law of Torts, § 105 (5th ed. 1984). In § 109 of that same treatise on the law of torts, however, the authors state the following:
The reason why I believe that Cagle failed to prove actual fraud in this case is based upon the particular facts surrounding the events out of which the alleged fraud arose. At the time Cagle's suit was tried in Winston County, Alabama, on October 20, 1985, the Mississippi Supreme Court, insofar as I can determine, still had not recognized the theory of "crashworthiness" with respect to second impact accidents. The law of Mississippi is expressed in Walton v. Chrysler Motor Corp., 229 So. 2d 568 (Miss.1970). The Walton case required that the defect in the vehicle must be the proximate cause or precipitating cause of the accident itself.
Cagle's suit was originally filed in a federal district court in Mississippi, apparently to avoid this problem, and his attorney sought to have the district court apply the substantive law of the State of Alabama under Vick v. Cochran, 316 So. 2d 242 (Miss.1975), which stands for the proposition that the substantive law of the state with the most substantial relationship to the parties and incident involved would be applied.
The federal district court in Mississippi refused to follow Vick in Cagle's suit; therefore, it necessarily determined that the substantive law of Mississippi, under Walton, barred any viable claim against International Harvester based on the theory of "crashworthiness," and dismissed Cagle's claim against International Harvester on June 13, 1979.
Even if an appeal had been pursued in the International Harvester suit, the Fifth Circuit Court of Appeals would have been bound under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), to follow the substantive law of the State of Mississippi. Bill Murphree and Thomas Lowe, attorneys practicing law in the State of Mississippi, testified that, based upon Vick and Walton, Cagle had no viable claim against International Harvester, and that an appeal would have been fruitless.
Of course, there was testimony to the contrary. Lanny Vines, a very competent Alabama lawyer, testified that, in his professional opinion, had the federal district court's judgment of dismissal been appealed to the Fifth Circuit Court of Appeals, that court would have reversed and the case would have been remanded, and on remand the case would have had a minimum settlement value of $750,000. I am of the opinion, however, that this testimony, even though given by a very competent trial attorney, was necessarily based upon what the Fifth Circuit Court of Appeals would have done had the case been appealed, and was too speculative.
Consequently, I am of the opinion that Cagle failed to prove that he had a viable suit against International Harvester under the substantive law of Mississippi; therefore, *230 he failed to prove that he suffered any damages as a result of any alleged reliance upon any statement made by Lawson, even if he had a right to rely upon the alleged representation made by Lawson.
Furthermore, even if Cagle's reliance upon Lawson's alleged promise kept him from letting Vines pursue reinstatement of the suit through an appeal, I am of the opinion that the Fifth Circuit Court of Appeals, under Erie R. Co. v. Tompkins, supra, would have been bound to follow the substantive law of the State of Mississippi, which did not recognize any recovery for Cagle under the facts of his case.
Consequently, I believe that Cagle failed to prove the necessary elements, under Alabama law, to permit his recovery on his claim of fraud, and I agree that the judgment must be reversed and judgment rendered for the defendant.
ADAMS, Justice (concurring specially).
This is an important case to the bench and bar, as well as to the public. Although plaintiff was not allowed to recover in this case, where his only theory of recovery was the theory of fraudulent misrepresentation by his attorney, we are not saying that an attorney could not be guilty of fraudulent misrepresentation. However, it is my opinion that where representations arise out of the attorney-client relationship, those suits are more properly filed as legal malpractice cases rather than fraudulent misrepresentation cases. It is interesting that this suit was originally filed as a malpractice case as well as a fraudulent misrepresentation case. Later, the malpractice action was stricken and the case proceeded to a verdict as a fraudulent misrepresentation case.
It is the law in this State that there can be no recovery for legal malpractice if the underlying case which gives rise to the malpractice case is not a viable one. That is to say, if the underlying case could not be won under any theory, then the plaintiff has not been damaged by any malpractice. Therefore, to allow the case to proceed against the attorney would give to the client a recovery to which he would otherwise not be entitled. As a practical matter, this is what occurred in this case. Although we sympathize with the plaintiff because of the injuries he has suffered, we must not forget that every personal injury does not automatically create a lawsuit upon which the plaintiff can recover. The circumstances surrounding this case compel us to conclude that plaintiff had no lawsuit from which he could successfully recover. Therefore, he conveniently attempted to recover from his attorney where he could not recover otherwise. This we cannot allow to happen. This does not mean that we condone a lawyer's making fraudulent misrepresentations, but there are means whereby a lawyer can be disciplined outside the litigation process. Our disciplinary panels are peculiarly suited to deal with this problem.
One further observation: Plaintiff testified at trial differently from the way he testified at deposition. Defendant filed a motion for summary judgment after plaintiff's deposition testimony was submitted to the trial court. In deposition, plaintiff testified that his attorney told him that if he could get his case into court, and if he could get it in front of a jury, he would guarantee him a million dollars. The record shows that the attorney was not able to get the case before a jury and was not able to keep the case in court. Under these circumstances, the plaintiff had not stated a misrepresentation; therefore, his case should have been dealt with on summary judgment. I would have ended our discussion of this case at that point. I see no need for this Court to address a new factual statement made by the plaintiff at trial which unequivocally said that the lawyer promised the client if he would fire co-counsel that he would get for the client's part a million dollars.
HOUSTON, Justice (concurring specially):
I concur with the per curiam opinion but I would extend it.
The plaintiff contends that there is no reason that attorneys should be immune from liability for their frauds. I agree.
7 Am.Jur.2d, Attorneys at Law § 215, (1980).
However, the representations of this defendant do not constitute actionable fraud, for the reasons set out in the per curiam opinion.
A cause of action is absolutely necessary to help rid society of deceptions deliberately practiced in order to secure unfair advantage or unlawful gain; but a cause of action must never be nurtured which could encourage courtroom deception deliberately practiced in order to secure unfair advantage or unlawful gain, in the guise of ridding society of such deceptions, no matter what the occupation or profession of the defendant may be. A physician cannot know that a patient will be healed, and a patient has no right to rely on such a representation. An attorney cannot know that his client will prevail in a lawsuit, and a client has no right to rely on such a representation.
The cause of action for fraud presents a dichotomy, being perceived by some as a means of righting wrongs and by others as a means of perpetrating wrongs. In reviewing this case, those who blame attorneys for making fraud this riddling thing, must be reminded of words Shakespeare wrote for Macbeth: "But in these cases, we still have judgment here; that we but teach bloody instructions which, being taught, return to plague the inventor; this even-handed justice commends the ingredients of our posion'd chalice to our own lips."
Whether an action for fraud is viewed as a poison'd chalice, or a cup of veracity, it has been brought to the lips of the legal profession; and "even-handed justice" demands that we treat it as we treat all other actions for fraud, and that we treat all other actions for fraud as we treat this case. So be it.
[1] Other jurisdictions have permitted actions for fraud to be maintained against attorneys by their clients, under proper circumstances. See Rodriguez v. Horton, 95 N.M. 356, 622 P.2d 261 (Ct.App.1980); Hall v. Wright, 261 Iowa 758, 156 N.W.2d 661 (1968); Harmening v. Howland, 25 N.D. 38, 141 N.W. 131 (1913). | January 23, 1987 |
97aa8efa-7931-4254-af9c-3702a55a074a | Luker v. City of Brantley | 520 So. 2d 517 | N/A | Alabama | Alabama Supreme Court | 520 So. 2d 517 (1987)
James LUKER, as Administrator of the Estate of Patrice Michele Luker
v.
CITY OF BRANTLEY, Alabama, a Municipal Corporation.
85-208.
Supreme Court of Alabama.
January 9, 1987.
Rehearing Denied July 10, 1987.
*518 Gary D. Hooper and Charles M. Thompson, of Thompson & Griffis, Birmingham, for James Luker.
Joe C. Cassady and Joe C. Cassady, Jr., of Cassady, Fuller & Marsh, Enterprise, for City of Brantley.
BEATTY, Justice.
In this wrongful death action, the plaintiff, James Luker, as administrator of the estate of Patrice Michele Luker, appeals from a judgment notwithstanding the verdict, which was granted in favor of one of the defendants, the City of Brantley. The jury had returned a $100,000 verdict against the City of Brantley. We reverse and remand with directions.
On October 15, 1982, at approximately 11:50 p.m., Patrice Michele Luker was killed when the automobile she was driving was struck head on by an automobile which was being driven by James Michael Patrick. Patrick's automobile had been traveling at a very high speed and on the wrong side of a double yellow line while going up a hill on U.S. Highway 331. Patrick was also killed in the collision.
In December 1983, James Luker, as administrator of his daughter's estate, filed a wrongful death action in Crenshaw Circuit Court. In this action, he named as defendants: Nicholas Clague, the owner of the automobile Patrick had been driving; Patrick; the City of Brantley; and the City of Luverne. The complaint was later amended so that it also included as defendants Brantley police officers Curtis Armstrong, James Ennis, and C. Collins Davis; the chief of police of the City of Brantley, Ralph Hamlis; and the chief of police of the City of Luverne, Jeff Mosley. Subsequently, Clague, the City of Luverne, Davis, Mosley, and Hamlis were dismissed. Although nothing in the record indicates that Patrick was ever dismissed, he was not proceeded against at trial.
At trial, Luker proceeded against the remaining defendants, the City of Brantley ("the City") and Officers Ennis and Armstrong, on the following theories:
(1) That Officers Ennis and Armstrong had negligently entrusted the automobile Patrick was driving to him with the knowledge that he was intoxicated and incapable of safely operating an automobile, or
(2) That the officers had negligently, or intentionally and/or wantonly, allowed Patrick to continue to operate an automobile while he was in an intoxicated state, or
(3) That the City, through its supervisory employees, had negligently failed to instruct these officers as to the proper manner in which to enforce the laws regarding intoxicated individuals.
Under each of these theories, Luker asserted that this wrongful action had proximately caused his daughter's death.
At the close of the plaintiff's evidence, the defendants moved for a directed verdict on numerous grounds. This motion was denied. In due course, the cause was submitted to the jury, and a verdict was returned against the City in the amount of $100,000. The jury returned a verdict in favor of the officers. The City filed a motion for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial. The trial court entered an order in which it set aside the jury's verdict and granted the City's motion for JNOV. The trial court, however, did not rule on the alternative motion for a new trial. Luker appeals from the JNOV.
Reviewing the evidence in the light most favorable to the plaintiff, we find that the following is revealed:
On October 15, 1982, Nicholas Clague, Charles Evans, and James Michael Patrick left Fort Walton Beach, Florida, in Clague's 1972 Chevrolet Camaro automobile, with Clague driving, bound for Huntsville, Alabama. All three individuals had been drinking alcoholic beverages prior to leaving. Clague's Camaro was powered by an engine which was described in testimony as a 300-horsepower "balanced and blue printed 350 Chevrolet." It was estimated that the automobile was capable of obtaining a speed as high as 150 miles per hour.
*519 As they began the trip, the three stopped by Patrick's trailer. From his trailer, Patrick took an "Igloo" cooler that contained at least two six-packs of beer. They placed the cooler in the back seat of the car and started up Highway 331 toward Huntsville. Clague was still driving the automobile, Evans was in the front passenger seat, and Patrick was in the back seat.
Before they reached the Alabama state line, the muffler on the Camaro came loose, and they stopped at a convenience store to get a coat hanger, and with it they reattached the muffler. While at this store, they purchased more beer. This beer was placed on the front floorboard of the car between Evans's feet. They again proceeded up Highway 331 toward Huntsville. At some point, the muffler again came loose, and they stopped, tore the muffler off completely, and left it on the side of the road.
By Evans's recollection, as he testified at trial, between 4:00 p.m. and the time they reached the Alabama state line, Clague had already consumed a six-pack of beer, Patrick had consumed at least one six-pack, and he, Evans, had consumed at least two six-packs. The empty cans had simply been tossed around in the car's interior.
The group reached Brantley, Alabama, at about 10:00 p.m., just about the time the last few carloads of people were leaving the Brantley High School parking lot after a football game. Officer James Ennis and Auxiliary Officer Curtis Armstrong had been "working the game" that night. As these officers came out of the high school parking lot, the Clague vehicle passed in front of them. They noticed that the car had no taillights and suspected, because of the loud noise, that it had no muffler. They pulled the vehicle over.
During the ensuing conversation with Clague, the officers asked Clague if he had been drinking. Although he apparently answered in the affirmative, the officers decided not to pursue the matter any further. Instead, after a brief discussion about the muffler and taillights, they allowed the three to leave in the vehicle.
A few minutes after this release, officers in a second Brantley police vehicle, who were returning from Luverne with a prisoner, observed the Clague vehicle traveling north on Highway 331 at approximately 95 miles per hour. Following the radio report of this sighting, Officers Ennis and Armstrong headed north in pursuit of the vehicle.
Before the officers caught up with them, however, the three had stopped at the Sunny South Convenience Store to purchase gasoline. According to the testimony of Billy Joe Wolfe, an employee of the store, all three of the men got out of the car and each placed an open can of beer on top of it. At about the time Wolfe had started out to ask them not to drink in front of the store, Officers Ennis and Armstrong arrived. Wolfe testified that the officers got out of their car, and that one of them walked up to the three men and poured each of the three cans of beer out onto the ground. The officers then began to arrest Clague. At some point, however, before the arrest was completed, Evans, who had gone into the store to pay for the gasoline, came out of the store and stumbled. A short time thereafter, during what was described as an argument between Evans and the officers, the officers threatened to arrest him for public drunkenness. However, even though Evans testified that he was "very intoxicated" at the time, no such arrest was made. Instead, the officers arrested only Clague, and they told Patrick that "if he could drive" he should take Clague's car and follow them to Luverne, where they were going to give Clague a photo-electric intoximeter (PEI) test.
At the Luverne Police Department, Clague was given the test and he registered.10 percent by weight of alcohol in his blood. Once these results were known, the officers again instructed Patrick to take Clague's car and follow them. This time, their destination was the Brantley Police Department, where they were going to "book" Clague.
At the Brantley Police Department, Clague was booked and jailed. The officers again asked Patrick if he thought he could *520 drive. Patrick responded in the affirmative. Thereafter, the officers asked Clague, whom they had just jailed for driving under the influence of alcohol, if it was okay for Patrick to take his car. Clague gave his consent. At about 11:15 p.m., Patrick and Evans were allowed to leave. At no time during their encounter with Patrick and Evans did the officers do anything more to determine the degree to which they were intoxicated. No tests were given to them and the vehicle was not searched or impounded. Instead, knowing that the two had been drinking alcohol, the officers helped them obtain an automobile and allowed them to leave.
At approximately 11:50 p.m., the Clague vehicle was involved in the accident which took the lives of both Patrice Luker and James Patrick. It was estimated that, immediately prior to the accident, Patrick had been traveling approximately 95 miles per hour. He had been on the wrong side of a double yellow line and had been attempting to pass another vehicle while going up a hill. The force of the impact knocked Patrice Luker's vehicle backwards about 85 feet. During the investigation of the accident, the standard traffic fatality kit was administered. When this sample was examined by the Alabama Department of Forensic Sciences, it showed that Patrick, at the time of his death, had a blood alcohol content of .10 percent by weight.
During the trial, it was revealed that, although they had each been appointed more than nine months before the fatal accident occurred, neither of the two officers, Ennis and Armstrong, had attended a recognized police academy as required by Code of 1975, §§ 36-21-46, et seq.
Mr. Seward Goss, head of the Alabama Department of Public Safety Academy, located in Selma, Alabama, testified that all approved academies are set up in conformity with certain "minimum standards" and that they all teach the same program concerning the subject of how to recognize and handle alcohol-related offenses. When Mr. Goss was asked, in the form of a hypothetical question, what the proper procedure would have been in this case, he responded that all three persons should have been arrested for public drunkenness and the vehicle should have been searched and impounded. Above all, he said, none of the subjects should have been allowed to leave the police station with the vehicle.
From these facts, we cannot escape the conclusion that Luker's claim that the officers, while acting in the line and scope of their duty, negligently allowed Patrick to operate the Clague vehicle while he was intoxicated and that as a proximate result of this negligence Patrice Luker was killed, was sustained by the evidence. The JNOV was granted erroneously.
Our decision that the actions of Officers Ennis and Armstrong, in and of themselves, constitute negligence for which a cause of action under § 11-47-190 may be sustained pretermits discussion of whether, in a particular case, the actions of the officers' superiors in failing to enroll them in the required minimum standards training programs could be considered the proximate cause of injury. Whether or not Officers Ennis and Armstrong had this training, it is clear that they acted negligently in allowing Patrick, under the circumstances of this case, to operate the automobile in an intoxicated state.
The City has strenuously asserted a number of arguments in support of the JNOV. Our examination of these arguments reveals some confusion as to what constitutes a proper ground for the granting of JNOV.
The City argues that the JNOV was proper because the verdict returned by the jury was inconsistent as a matter of law. It also argues that the JNOV was justified because the trial court erroneously read portions of Code of 1975, § 36-21-46, to the jury during its charge. We address the underlying merits of neither the argument that the verdict is inconsistent nor the argument that the reading of portions of § 36-21-46 to the jury was erroneous, as we determine that neither of these arguments, even if supported by the record, can support the granting of a JNOV.
*521 A motion for JNOV is properly granted only when the movant would have been entitled to a directed verdict. Wright v. Fountain, 454 So. 2d 520 (Ala.1984). Such a motion tests the sufficiency of the evidence and, if granted, discloses that, without weighing the credibility of the evidence, there can be only one reasonable conclusion from the evidence as to the proper judgment. Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985).
On the other hand, the general rule is that, where a verdict in a civil case is inconsistent and contradictory, it should be set aside and a new trial granted. See generally, 66 C.J.S. New Trial § 66 (1950). Alabama adheres to this rule. See, e.g., Ward v. Diebold, Inc., 486 So. 2d 1261 (Ala. 1986); Wickham v. Cotten, 465 So. 2d 388 (Ala.1985); Sibley v. Odum, 257 Ala. 292, 58 So. 2d 896 (Ala.1952). Similarly, the giving of an erroneous charge to the jury requires a new trial. Beneficial Management Corp. of America v. Evans, 421 So. 2d 92 (Ala.1982).
It is clear that the remedies of JNOV and new trial have distinctly different functions and that one may not be substituted for the other. Cf. City of Birmingham v. Andrews, 222 Ala. 362, 132 So. 877 (1931). While the practice of Alabama's courts is not identical to that which is used in the federal system, the practices are similar enough that the following explanation, as set out in C. Wright & A. Miller, Federal Practice & Procedure, § 2531 (1971), is instructive:
In light of these principles and authorities, it is clear that the appropriate remedy for the rendition of an inconsistent verdict is not a JNOV; rather, the appropriate remedy is a new trial. Other courts that have addressed the issue have reached the same conclusion. See, e.g., Farm Bureau Mutual Ins. Co. v. Sears, Roebuck & Co., 99 Mich.App. 763, 298 N.W.2d 634 (1980). Similarly, the appropriate remedy for the giving of an erroneous charge to the jury is a new trial. See Beneficial Management Corp. of America, supra.
Having reached these conclusions, we must consider this: Where possible grounds for a new trial have been argued in both the trial court and on appeal and a proper motion for a new trial has been made in the trial court but has not been ruled upon, may this Court ex mero motu remand this cause to the trial court with directions to reconsider and to rule upon the motion for new trial? We determine that we can.
It has always been generally recognized that an appellate court has the option of remanding a case to the trial court with directions to rule upon a motion for a new trial in situations where the entry of a JNOV has been reversed but the trial court has failed to rule on the motion for a new trial.
5A J. Moore & J. Lucas, Moore's Federal Practice § 50.14 (2d ed. 1986). We hereby adopt this as the practice in Alabama. In doing so, however, in order to avoid any confusion, we specifically note that this practice is not inconsistent with this Court's recent decision in Ex parte Handley, 494 So. 2d 24 (Ala.1986) ("Handley II").
In Handley II, we recognized that it is error for a trial court not to rule on a motion for new trial. See also Rule 50(c)(1), A.R.Civ.P. However, we also held that this error had been waived, under the circumstances of that case, because the movant had not raised the issue of the trial court's failure to rule on its new trial motion in the earlier direct appeal. A careful reading of both Handley v. City of Birmingham, 475 So. 2d 1185 (Ala.1985) ("Handley I") and Handley II is necessary in order to understand why the error was waived in that case but was not waived in the present case.
Handley had sued the City of Birmingham for negligence, and the jury had returned a verdict in favor of Handley. Judgment was entered in accordance with that verdict. The City of Birmingham filed motions for JNOV and for new trial. The trial court then granted JNOV, finding no evidence of proximate cause. Handley appealed only from the granting of JNOV. No mention was made by either party concerning the issue of a new trial. In Handley I, we reversed the JNOV, finding at least a scintilla of evidence on the proximate cause issue, and remanded the case.
Because the parties had not raised any issue concerning the propriety of a new trial and nothing about the case caused us to consider ex mero motu the new trial issue, the opinion simply omitted any discussion of the issue. Then, after the case had been remanded, the City of Birmingham again moved for a new trial before the trial court. This motion was granted.
Handley appealed and alternatively applied for a writ of mandamus (Handley II). For the first time, the parties brought to our attention that the alternative motion for a new trial had not been ruled upon as required by Rule 50(c)(1), A.R.Civ.P., when JNOV was granted. Handley contended, and a majority of this Court agreed, that because Rule 50(c)(1) gave the City of Birmingham a right to have the new trial motion ruled upon and because the City had failed to raise the issue in Handley I, the issue was waived.
The issue in Handley II was not whether this Court could have ex mero motu remanded the case for consideration of the new trial motion. The question was whether the trial court could grant a new trial after remand of the case from this Court without specific directions to do so. In Handley II, we held that the trial court had no such discretion to grant a new trial because we had not ordered it to do so. The applicable rules to be applied in such a situation were explained in Ex parte Alabama Power Co., 431 So. 2d 151, 155 (Ala. 1983) (cited in Handley II):
"`It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence....'"
"5 Am.Jur.2d, Appeal and Error § 991 (1962).
"`The reversal was not one with mere general directions for a new trial, referred to by some of the authorities as an "unqualified reversal" (2 R.C.L. p. 290), but one with specific directions.
"`"Where * * * the cause is remanded with directions as to the judgment to be entered, such judgment should be entered without a new trial." 13 Ency.Plead. & Pract. p. 854. "Where a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior. * * * Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of a reviewing court, has had its merits determined, and has been remanded with specific directions, the court to which such mandate is directed has no opower to do anything but obey, otherwise, litigation would never be ended." 2 R.C.L. p. 289.'
"215 Ala. at 248-49, 110 So. 394."
In light of the above discussion, we must conclude that where the issue of a new trial has arisen, as it has in the present case, before jurisdiction of the case has passed back to the trial court on remand with limiting instructions, a party's right to have its motion for a new trial ruled upon by the trial court has not been waived.
Therefore, the foregoing considered, the City's JNOV is reversed. This cause is remanded to the trial court so that the City's motion for new trial may be reconsidered by the trial court. Only those grounds argued herein may be considered in ruling on this motion. Discussion of all other issues is pretermitted.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
ALMON, J., not sitting.
PER CURIAM.
On original deliverance, we remanded this cause for the trial court's reconsideration of the City's new trial motion and limited such consideration to those grounds argued before this Court. We take this opportunity to clarify those issues that need to be resolved by the trial court.
We held that there was evidence that the officers were negligent while acting in the line and scope of their duty and, thus, that the City could have been held vicariously liable; therefore, the City's judgment notwithstanding the verdict was reversed. The jury verdict for the officers and against the City could not be reconciled if the only claim against the City was predicated on the underlying negligence of the officers. Apparently, however, the plaintiff also pursued a claim against the City for its independent negligence in improperly training the officers.
Before the trial court can grant a new trial based upon the apparent inconsistency of the verdicts, it must resolve the question of whether the evidence supported a claim against the City for its independent negligence. Only if such a claim was not sustained by the evidence could the trial court grant a new trial for the apparent inconsistency. The trial court must also determine whether its oral charge concerning Code 1975, § 36-21-46, which was apparently directed to the claim of negligent training, was erroneous.
If the trial court resolves these two issues favorably to the plaintiff, the appropriate action will be the reinstatement of the verdict and the judgment entered thereon. Otherwise, the trial court will grant a new trial, specifying the grounds made the basis of its new trial order.
OPINION EXTENDED; APPLICATION OVERRULED.
*524 TORBERT, C.J., and JONES, SHORES, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
BEATTY, J., concurs in the result.
MADDOX, Justice (concurring specially).
On rehearing, the plaintiff argues that the City's alternative motion for a new trial was effectively deemed denied by operation of Rule 59.1, Ala.R.Civ.P., because the trial court did not rule on it within 90 days.
The original opinion in this case states the correct rule of law applicable when a party files a motion for a judgment notwithstanding the verdict, under the provisions of Rule 50(b), Ala.R.Civ.P.:
This quotation from 5A J. Moore & J. Lucas, Moore's Federal Practice § 50.14 (2d ed.1986), is the principle of law an appellate court should apply when a trial judge fails to make a ruling on an alternative motion for a new trial, as required by Rule 50(c)(1), Ala.R.Civ.P.
If the trial court conditionally grants the motion for a new trial, Rule 50(c)(1) states that "the order thereon does not affect the finality of the judgment." (Emphasis added.) In other words, the party against whom J.N.O.V. is entered may appeal the ruling, even though the trial judge has ordered a new trial. But what if the trial judge does not conditionally rule on the alternative motion for a new trial? Does Rule 59.1, Ala.R.Civ.P. apply? Obviously not. Rule 59.1 was never intended to apply to an alternative motion for a new trial filed pursuant to the provisions of Rule 50(b), and required to be ruled on by the provisions of Rule 50(c)(1) at the time the trial judge rules on the motion for a judgment notwithstanding the verdict. In such a case the motion for new trial will have been filed by the same party who filed the motion for judgment notwithstanding the verdict, and if an appeal is taken from the adverse ruling of the court on the motion for judgment notwithstanding the verdict, then the law is as stated in our opinion on original deliverance. In fact, in this case, and in Handley II, 494 So. 2d 24 (Ala.1986), the motion for a judgment notwithstanding the verdict and in the alternative for a new trial was one document and the same grounds were alleged for both motions.
The rule that a case cannot be pending in a lower court and an appellate court at the same time, Walker v. Alabama Public Service Commission, 292 Ala. 548, 297 So. 2d 370 (1974) (overruled to the extent that it is inconsistent with Ex parte Andrews, 520 So. 2d 507 (Ala.1987)) would not apply to this appellant, in any event, because he had appealed, and there was pending in the trial court a motion for new trial which had not been ruled upon, but there is one distinct difference between this case and the facts in the Walker case. The procedure for the handling of motions for judgment notwithstanding the verdict is controlled by Rule 50(b), Ala.R.Civ.P., and specific provisions are made for incorporating a motion for new trial with the motion for J.N.O.V. These rules of civil procedure were not meant to be "traps" for the unwary, and I am of the opinion that, under the facts of this case, the original opinion stated the correct principle of law.
A whole different problem is presented when there are multiple claims or multiple parties, but Rule 54, Ala.R.Civ.P., contains the procedure to be followed in those cases. If there are multiple claims or multiple parties, and an order is entered as to one or more of the claims, but not all, or as to some of the parties, but not all, then the judgment entered is not final, unless a certification is made as required by Rule 54(b). Under Rule 50(c)(1), Ala.R.Civ.P., the judgment entered by the court in the motion for J.N.O.V. is a final judgment. In fact, when this Court gets an appeal in a case in which there is still pending in the trial court an issue upon which no adjudication *525 has been made, it will, on its own motion, remand the cause to the trial court to allow proceedings pursuant to the provisions of Rule 54(b). See Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984).
Because of the above-stated reasons, I concurred in this Court's decisions released concurrently with this opinion, that a trial court has jurisdiction to rule on a party's timely filed post-judgment motion, even though another party has filed a notice of appeal. Ex parte Andrews, 520 So. 2d 507 (Ala.1987); Owens v. Coleman, 520 So. 2d 514 (Ala.1987). To apply the rule that the filing of a notice of appeal by one party would oust the trial court of jurisdiction to rule on a timely filed post-judgment motion by another party would violate the spirit of the Rules of Civil and Appellate Procedure. Even though our Court has not adopted a rule of procedure to specifically address the problem presented in this case, and in the cases of Owens and Andrews, I believe that the principle I state herein adopts the spirit of our rules.
Every party is entitled to file a post-judgment motion if he considers the judgment entered to be adverse to him, and if a timely post-judgment motion is filed, then the filing of a notice of appeal by another party from that same judgment, should not, and, in my opinion, does not, oust the trial court of jurisdiction to rule on the motion. There could be cases, especially those involving multiple parties, where the grounds of a post-judgment motion could be entirely different, or where one party could appeal without filing a post-judgment motion. Why should one party, by filing a notice of appeal, be able to oust the trial court of its jurisdiction to rule on another party's motion? I do not believe one could. I would point out, however, that the better procedure would be for the party who has notice that an appeal has been taken, to file a motion in the appropriate appellate court, suggesting that the party has filed, or will file, a timely post-judgment motion with the trial court, and ask the appellate court to take appropriate action regarding the appeal. This procedure would allow for all of the issues tried below to be considered in one appeal, not several. Of course, if a post-trial motion has not been filed by one party when another party files a notice of appeal, then we cannot note its pendency and remand the case under Rule 54(b).
Although I am of the opinion that the provisions of Rule 59.1 should not apply in this case, for the reasons I have set out, I do believe that Rule 59.1 would apply to all post-judgment motions in other situations. In this case, the City of Brantley was successful in getting its motion for judgment notwithstanding the verdict granted. Even though the trial court should have ruled on the City's alternative motion for new trial (Rule 50(c)(1)), the failure of the trial court to do so was not an adverse ruling against the City. The City had won. Why should the City complain that the trial judge did not rule on its alternative motion for a new trial? Why should a winning party have to secure a ruling to protect its rights, especially when the identical grounds are alleged in both motions? There is no reason to require a winning party to do this. Of course, a trial judge should rule on the alternative motion for a new trial, as the rule says, but if he does not, I would not apply the principles of Rule 59.1 to the failure to rule.
Mr. Justice Beatty stated the correct principle of law to be applied in this case on original deliverance, quoting from 5A J. Moore & J. Lucas, Moore's Federal Practice § 50.14 (2d ed.1986). See also Gordon Mailloux Enterprises, Inc. v. Firemen's Insurance Co., 366 F.2d 740 (9th Cir.1966). I concur that the application for rehearing should be overruled. | January 9, 1987 |
94e73949-24e3-4d2e-ad76-eb2eb496cc85 | Randolph County v. Thompson | 502 So. 2d 357 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 357 (1987)
RANDOLPH COUNTY
v.
Charlie Will THOMPSON.
RANDOLPH COUNTY
v.
Charlie Will THOMPSON.
85-655, 85-1124.
Supreme Court of Alabama.
January 9, 1987.
*359 John A. Tinney, Roanoke, for appellant.
Tom Radney of Radney & Morris, Alexander City, for appellee.
BEATTY, Justice.
Appellant, Randolph County ("the County"), appeals from two orders entered by the Randolph Circuit Court against it in two different actions now consolidated for appeal. The first order denied its motion to intervene in an action, and the second order granted summary judgment against it in a declaratory judgment action.
On September 13, 1979, Charlie Will Thompson, Sheriff of Randolph County, filed with Governor Fob James a written declaration of election to become a supernumerary sheriff pursuant to the provisions of Code of 1975, § 36-22-60. Prior to Thompson's filing of this declaration, criminal proceedings had been instituted *360 against him in the United States District Court for the Middle District of Alabama. He had been charged with violating various provisions of the federal election laws in that he had knowingly and willfully paid or offered to pay voters to vote in an election. Thompson was found guilty and sentenced to serve a three-year term in the federal penitentiary; however, he served only three months in prison. The balance of the sentence was suspended and he was placed on probation. Thompson was also fined $1,000. This conviction was affirmed by the United States Court of Appeals for the Fifth Circuit. At some point subsequent to his conviction, Thompson's request for appointment as a supernumerary sheriff was denied.
After this denial, Thompson brought a declaratory judgment action against Governor James in the Montgomery Circuit Court seeking an order that he was entitled to an appointment as a supernumerary sheriff. The Montgomery Circuit Court granted the requested judgment. Governor James appealed to this Court.
On January 23, 1981, this Court reversed the judgment of the Montgomery Circuit Court and held that Thompson, "upon his conviction of the infamous crime of voting fraud, became ineligible and disqualified from holding the office of supernumerary sheriff." James v. Thompson, 392 So. 2d 1178, 1180 (Ala.1981). Subsequently, Thompson asked for a return of the funds he had paid into the supernumerary sheriff's fund in Randolph County. These were returned.
On July 1, 1981, Thompson received a pardon from the Alabama Board of Pardons and Paroles.[1] Again, he applied to the governor for a supernumerary sheriff's appointment. Governor George Wallace denied his request on April 10, 1985.
On April 23, 1985, Thompson filed an action in Randolph Circuit Court against Governor Wallace (Thompson v. Wallace) seeking a judgment declaring that, because of the pardon, he was now entitled to supernumerary status. The trial court granted judgment in his favor on November 26, 1985.
On November 27, 1985, Governor Wallace, through a representative in the attorney general's office, filed both a notice of appeal and a motion to stay the trial court's judgment. Shortly thereafter, however, a conflict of interest developed between the governor and the attorney general's office. As a result of this conflict, on December 12, 1985, the attorney general's office moved to withdraw as the governor's counsel. This Court granted that motion on December 31, 1985. On that same day, on motion from the governor's new counsel, the appeal in Thompson v. Wallace was dismissed.
Sometime thereafter, in compliance with the trial court's judgment, Governor Wallace appointed Thompson to a position as a supernumerary sheriff of Randolph County. On January 21, 1986, the County was notified of this appointment by a letter addressed to the probate judge's office. On that same day, Thompson tendered an amount to the county that was equal to the amount he had earlier withdrawn from the *361 county's supernumerary sheriff's fund. This amount was not accepted by the probate judge. Instead, it is being held in escrow pending a resolution of this appeal.
On January 28, 1986, the County filed the following in the Randolph Circuit Court:
(1) A motion to intervene in the action that had originally been filed by Thompson on April 23, 1985 (Thompson v. Wallace). The County asserted that, because a supernumerary sheriff's salary is paid from county funds, it was entitled to intervene as of right pursuant to Rule 24(a), A.R. Civ.P.
(2) An answer to Thompson's original complaint in Thompson v. Wallace.
(3) A motion for relief from the judgment of the trial court that had been entered on November 26, 1985, in Thompson v. Wallace.
On February 26, 1986, the trial court denied the County's motion to intervene, and, thereby, also denied all other relief requested by the County. On March 4, 1986, the County filed a notice of appeal from the trial court's denial of its motion to intervene. That is one of the appeals now before this Court (Case No. 85-655).
On March 7, 1986, while the appeal from the denial of the County's motion to intervene in Thompson v. Wallace was still pending, the County filed an action in Randolph Circuit Court seeking a declaratory judgment as to whether the County had to pay Thompson's salary as a supernumerary sheriff. Within days of the filing of this complaint, Thompson filed a petition for writ of mandamus which requested the trial court to order the County to start paying him as a supernumerary sheriff. Thompson also petitioned for damages from the County's probate judge and all but one of the county commissioners. The damages portion of Thompson's petition was later severed. In turn, each party moved to dismiss the other's complaint or petition.
At hearing, Thompson's motion to dismiss was treated as a motion for summary judgment. The trial court awarded Thompson summary judgment on the County's declaratory judgment claim. Thompson's petition for writ of mandamus was dismissed. On May 28, 1986, the County appealed from that order granting summary judgment. That is the second of the appeals now before this Court (Case No. 85-1124).
On July 7, 1986, Thompson moved to have the appeals in these two cases consolidated. This motion was granted. Thompson has also moved to dismiss these appeals. We consider first the summary judgment granted to Thompson in the County's declaratory judgment action.
In this action, the County makes a number of arguments. Among these are: (1) that the pardon granted to Thompson by the parole board is void on its face and of no effect; (2) that the trial court's decision in Thompson v. Wallace should have been barred by the doctrine of res judicata because of this Court's decision in James v. Thompson, 392 So. 2d 1178 (Ala.1981); (3) that Thompson did not qualify for supernumerary sheriff status because he had earlier withdrawn his funds from the supernumerary sheriff's fund of the County, and (4) that the pardon does not, even if it is valid, entitle Thompson to supernumerary status. It is clear to us that, in making these arguments, the County is attempting to collaterally attack that judgment issued by the trial court in Thompson v. Wallace that same judgment which the County is trying to attack directly through intervention in Thompson v. Wallace.
As explained in Williams v. First National Bank of Mobile, 384 So. 2d 89, 93 (Ala.1980):
See also Williams v. Overcast, 229 Ala. 119, 155 So. 543 (1934). This distinction *362 between a direct and a collateral attack cannot be overemphasized.
A judgment which is regular on its face and indicates subject matter and personal jurisdiction is conclusive on collateral attack. Otto v. Guthrie, 475 So. 2d 856 (Ala.1985); Nigg v. Smith, 415 So. 2d 1082 (Ala.1982); Williams v. First National Bank of Mobile, supra.
The general rule regarding the collateral attack of a judgment by a person who was not a party to the prior proceeding is adequately stated in 49 C.J.S. Judgments § 414 (1947):
In its declaratory judgment action, the County does not argue any want of jurisdiction, fraud, or collusion. Further, the judgment appears regular "on its face." As such, we must hold that this collateral attack on that judgment must fail. As a result, even though the trial court did not grant summary judgment on the basis of the collateral nature of the County's action, the decision of the trial court is affirmed. See Boyd v. Brabham, 414 So. 2d 931 (Ala. 1982); Staub v. Alabama Power Co., 350 So. 2d 386 (Ala.1977).
We now turn our attention to the County's motion to intervene in Thompson v. Wallace.
At the hearing before the trial court, the County argued that it had a right to intervene in Thompson v. Wallace, pursuant to Rule 24(a), A.R.Civ.P. The trial court held that the County could not intervene because, although the County "is an interested party, [it] is not a necessary party" to the action. The trial court's judgment was based, in part, upon its finding that, pursuant to the language of § 36-22-60, Code of 1975, only Governor Wallace is a necessary party to an action brought to determine one's rights under that statute. The pertinent part of § 36-22-60 provides:
The trial court's use of the terms "necessary" and "interested" parties is misleading and unfortunate. The term "necessary party" is taken from that historical terminology which was once used to determine questions of joinder. See, Committee Comments, Rule 19, A.R.Civ.P.
While the rules governing intervention and joinder are somewhat similar, they must be distinguished. Intervention is a method by which an outsider with an interest in a lawsuit may come in as a party on his own application. Ex parte Howell, 447 So. 2d 661 (Ala.1984). However, joinder is a method by which one may be compelled to become a party. Id. We need not decide, in this appeal, whether the County is a party that must be joined pursuant to Rule 19, A.R.Civ.P. Our focus is upon Rule 24, A.R.Civ.P.
Rule 24, A.R.Civ.P., designates two separate types of intervention: "intervention of right" and "permissive intervention." The County argues that it was entitled to intervene as of right in Thompson's action pursuant to Rule 24(a)(2), A.R.Civ.P. That rule provides:
Our first inquiry, then, under Rule 24(a)(2) is whether the County claims a sufficient interest relating to the property or transaction which is the subject of Thompson's declaratory judgment action. The proper approach to this inquiry was very well explained in State ex rel. Wilson v. Wilson, 475 So. 2d 194, 196 (Ala.Civ.App. 1985):
See generally, Wright, Miller & Kane, Federal Practice & Procedure (hereinafter "Wright & Miller"), § 1908 (2d ed. 1986).
In applying this approach to Wilson, the Court of Civil Appeals held that the financial interest that the Department of Pensions and Security had in the collection of child support payments was sufficient to allow it to intervene in a contempt proceeding. We agree and hold similarly that the financial interest that the County had in the outcome of Thompson's declaratory judgment action is sufficient to meet the standard of Rule 24(a)(2). That financial interest is clearly set out in the language of Code of 1975, § 36-22-62(a), which provides:
(Emphasis added.)
We now turn to the question of whether the County is so situated that the disposition of Thompson's declaratory judgment action "may as a practical matter impair or impede [its] ability to protect that interest."
Again, we note that this requirement of Rule 24(a) must be measured by a "practical" rather than a "technical" yardstick. See Wilson, supra. See also, Committee Comments, Rule 24, A.R.Civ.P. See generally, Wright & Miller, § 1908. Clearly, as a practical matter on the facts of the present case, the County is so situated that, if it is not allowed to intervene, its ability to protect its interest will be impaired or impeded. This can be made no more apparent than it already has been by this Court's decision, as earlier expressed, that the County is not permitted to collaterally attack the judgment issued in Thompson's declaratory judgment action.
Next, we must determine whether the county's interest is adequately represented by existing parties. It is interesting to note, regarding this issue, that the language of Rule 24(a)(2) apparently expresses the requirement so as to place the burden of persuasion on this issue upon those opposing the motion to intervene. The following discussion is found in Wright & Miller, § 1909:
(Footnotes omitted.)
We are not persuaded that, on the facts of the present case, the County's interest was adequately represented by the only existing party, Governor Wallace. For whatever reason, the governor decided not to prosecute the appeal from the trial court's adverse ruling. This decision was made even though the case involved at least one determinative issue of first impression, i.e., the effect a pardon would have on a person's eligibility to hold public office. The County adamantly asserts that it would have prosecuted an appeal. Apparently, the attorney general's office was also of the opinion that the appeal should have been prosecuted.
While it is not for this Court to speculate as to what was the proper course of action regarding the decision to appeal, we perceive that there is a great difference as to the respective duties and responsibilities of the governor's office, on the one hand, and the Randolph County Commission, on the other hand. While the interests of both offices might normally be so similar as to persuade a court that the existence of the one party as a defendant in a lawsuit would mean adequate representation of the other's interest, we do not recognize this as always true. Indeed, for whatever reason, it is clear that the County's interest was not adequately represented in the present case once the decision had been made not to prosecute the appeal. We conclude that, on the facts of this case, the County had a right to intervene under Rule 24(a)(2), A.R.Civ.P.
Thompson has not argued, and the trial court did not hold, that the County's motion to intervene was untimely. Nonetheless, because Rule 24 specifically requires that any motion to intervene must be "timely," we address the timeliness of the County's motion.
Since the rule, itself, is silent concerning what constitutes a "timely application," it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. See Strousse v. Strousse, 56 Ala.App. 436, 322 So. 2d 726 (1975). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir.1970). Because the pressure to allow intervention "of right" under Rule 24(a) is by its very nature more compelling than is permissive intervention, most courts tend to require less rigidity in evaluation of timeliness under Rule 24(a). See Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir.), cert. denied, 400 U.S. 878, 91 S. Ct. 118, 27 L. Ed. 2d 115 (1970), rehearing denied, 400 U.S. 1025, 91 S. Ct. 580, 27 L. Ed. 2d 638 (1971). See generally, Wright & Miller, § 1916. As expressed in McDonald, 430 F.2d at 1073: "Since in situations where intervention is as of right, the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss such a request for intervention as untimely, even though they might deny the request if the intervention were merely permissive."
Notwithstanding these principles, however, motions for intervention after judgment have not met with favor in the courts. See generally, Wright & Miller, *365 § 1916. As was stated in McDonald, 430 F.2d at 1072: "The rationale which seems to underlie this general principle ... is the assumption that allowing intervention after judgment will either (1) prejudice the rights of the existing parties to the litigation or (2) substantially interfere with the orderly processes of the court." However, if neither of these results would occur, the mere fact that judgment has already been entered should not by itself require the denial of an application for intervention. See Wright & Miller, § 1916.
As explained by the court in McDonald, 430 F.2d at 1074:
In applying these principles to the unusual facts of this case, we cannot escape the conclusion that the County's motion to intervene was timely. The County did not become aware of this litigation until a letter was presented to it on or about January 21, 1986, in which the governor had already appointed Thompson as a supernumerary sheriff. The County's application for intervention was filed just one week later on January 28, 1986. Any delay in the litigation, therefore, cannot be attributed to any dilatory conduct on the part of the County. Further, we fail to see that any substantial prejudice could be caused to Thompson by the delay. While it may be inconvenient to either the trial court or Thompson to allow the County to intervene at this late stage, mere inconvenience is not in itself sufficient to reject as untimely a motion to intervene as of right, see McDonald, supra, particularly considering that, on the facts of this case, what the County is really asking for is the opportunity to take an appeal that an existing party to the litigation decided to discontinue.[2] Many courts have allowed intervention in similar circumstances for the specific purpose *366 of taking an appeal. See, e.g., United Air Lines, Inc. v. McDonald, 432 U.S. 385, 97 S. Ct. 2464, 53 L. Ed. 2d 423 (1977); Baker v. Wade, 769 F.2d 289 (5th Cir.), rehearing denied, 774 F.2d 1285 (1985), cert. denied, ___ U.S.___, 106 S. Ct. 3337, 92 L. Ed. 2d 742 (1986); Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir.1984); United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C.Cir.1980).
Having determined that the County could properly intervene as of right in Thompson v. Wallace in order to prosecute the appeal that was earlier dismissed on motion of the governor's office, we can see no just reason to delay making a determination on the underlying merits of this case. Both parties have submitted briefs in which they discussed these underlying issues. Further, at oral argument of this case, counsel for Thompson insisted that "the merits" are now before this Court. Rule 1, A.R. App.P., declares that these rules "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits." Similarly, Rule 1, A.R.Civ.P., declares that "these rules shall be construed to secure the just, speedy and inexpensive determination of every action." In accordance with these policies, we now address the merits of the County's appeal.
Of those issues raised, we need address only one as determinative of this appeal: The effect a pardon for Thompson would have upon his eligibility for supernumerary sheriff status. Thompson argued, and the trial court agreed, that the pardon he received restored his eligibility. The County argues that it does not restore his eligibility for such status. We must agree with the County. The decision of the trial court is reversed.
The general effect of a pardon was exhaustively discussed in Mason v. State, 39 Ala.App. 1, 103 So. 2d 337 (1956), aff'd, 267 Ala. 507, 103 So. 2d 341 (1958). In that decision, the Court of Appeals concluded:
(Emphasis added.) 39 Ala.App. at 4-5, 103 So. 2d at 340-41.
In affirming the decision of the Court of Appeals in Mason, this Court adopted the above statement as the law in Alabama and accepted that court's conclusion that the more liberal statements as to the effect of a pardon that had been made in In re Stephenson, 243 Ala. 342, 10 So. 2d 1 (1942), and Hogan v. Hartwell, 242 Ala. 646, 7 So. 2d 889 (1942), were "broad generalization[s] and like all statements of generalities, will lead to paradoxical conclusions if mechanically and literally applied to every factual situation." Mason, 39 Ala. App. at 1, 103 So. 2d at 339. We hold to that statement of the law as it is set out in Mason.
Because, in Alabama, a pardon eliminates neither the fact of conviction nor the moral guilt accompanying the conviction, we must conclude that a pardon does not restore to one pardoned the eligibility to hold public office.
Section 60 of the Constitution of Alabama 1901, provides:
In James v. Thompson, supra, this Court concluded both that the office of *367 supernumerary sheriff was an "office of trust [and] profit," 392 So. 2d 1180, and that the crime for which Thompson had been convicted (voting fraud) was an "infamous crime." Id. Therefore, Thompson was "ineligible and disqualified from holding the office of supernumerary sheriff." Id. Because the pardon Thompson received removed neither the fact of his conviction nor his moral guilt, he remains ineligible to hold that office.
The judgment of the trial court denying the County's motion to intervene is reversed, and this cause is remanded to the trial court with directions to enter a judgment in favor of the County.
The motions to dismiss these appeals are denied.
MOTIONS TO DISMISS DENIED.
AFFIRMED AS TO APPEAL NO. 85-1124.
REVERSED AND REMANDED WITH DIRECTIONS AS TO APPEAL NO. 85-655.
JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., concurs specially.
MADDOX and STEAGALL, JJ., concur in the result.
ALMON, J., not sitting.
TORBERT, Chief Justice (concurring specially).
Randolph County sought to intervene in the declaratory judgment action filed by Thompson after the governor declined to prosecute an appeal from a judgment in Thompson's favor. The majority opinion correctly determined that the motion to intervene should have been granted. One of the reasons why the county sought to intervene was so that it could file a motion for relief from the judgment. At the hearing on the motion to intervene, the county argued that if intervention was permitted, the county would show that the pardon was void on its face. I think the county's contention concerning the validity of the pardon is well taken.
The pardon says that Thompson was sentenced to a term of three years on May 27, 1980. The pardon also reflects that it was issued on July 1, 1981. Code 1975, § 15-22-36(c), provides in part:
Code 1975, § 15-22-40, provides:
It is clear from the face of the pardon that § 15-22-36(c) has been violated. The pardon shows that it was impossible for him to have served at least three years of permanent parole prior to the time the pardon was granted and that he was not sentenced to a term of less than three years. Because neither condition for eligibility for pardon has been met, the pardon is "null and void" pursuant to § 15-22-40.
Because the pardon is void, there is no question that Thompson is barred by § 60, Constitution of Alabama 1901, from holding the office of supernumerary sheriff.
[1] The pardon in the present case provided that "all civil and political rights of which Charlie Will Thompson was, by the laws of Alabama, deprived upon his conviction in said Federal Court ... are hereby restored."
Although the authority of the Alabama Board of Pardons and Paroles to grant a pardon for a federal conviction has not been made an issue in this case by the parties, we nevertheless point out that authority for such a pardon does exist. In Hogan v. Hartwell, 242 Ala. 646, 651, 7 So. 2d 889, 892 (1942), this Court stated:
"We are, therefore, of the opinion the State Board had the authority to issue the order restoring citizenship rights to the contestee [who had been convicted of a federal offense] and that the argument to the contrary is without merit."
While, as is discussed later in this opinion, the statement of the law made in Hartwell concerning the effect of a pardon as to the restoration of specific civil and political rights, e.g., the right to hold public office, was, in effect, overruled by this Court's decision in Mason v. State, 267 Ala. 507, 103 So. 2d 341 (1958), affirming 39 Ala.App. 1, 103 So. 2d 337, the decision as to the above point of law was not overruled. We continue to hold to that statement of the law.
[2] Although the County filed a motion for relief from judgment along with its motion to intervene and answer, the wording of this motion makes clear that it was seeking intervention only for the purpose of taking the appeal that the governor's office had decided not to pursue. In pertinent part, the County's motion for relief stated:
"Said Randolph County would further state that its interests were being adequately protected apparently up until January 2, 1985 [sic, December 31, 1985], at which time the Attorney General's office was allowed to withdraw as counsel for the Governor of the State of Alabama due to a conflict of interest which had arisen between the Governor's office and the Attorney General's office. It is apparent from the status of the pleadings that the Governor's office of the State of Alabama is not willing to protect the interest of the citizens of Randolph County by not pursuing the appeal which had originally been filed in this matter."
Under the Alabama Rules of Civil Procedure, the nomenclature of a motion is not controlling. Ex parte Hartford Ins. Co., 394 So. 2d 933 (Ala. 1981). | January 9, 1987 |
e7edf2c2-6604-480e-95db-45660376f904 | Ex Parte Purvis | 689 So. 2d 794 | 1951352, 1951361 | Alabama | Alabama Supreme Court | 689 So. 2d 794 (1996)
Ex parte Thomas J. PURVIS.
Ex parte Allan SCOTT.
(Re Donna AKERS and Mark Hankins Akers v. MOBILE COUNTY, et al.).
1951352, 1951361.
Supreme Court of Alabama.
December 6, 1996.
Rehearing Denied February 21, 1997.
Wade B. Perry, Jr., and Tracy P. Turner of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for defendant/petitioner Allan Scott and for defendants Mobile County and Mobile County Sheriff's Office.
Roderick P. Stout and W. Perry Hall of Stout & Rossler, Mobile, for Thomas J. Purvis.
James A. Yance, David G. Wirtes, Jr., and Kelli D. Taylor of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for plaintiffs/respondents.
MADDOX, Justice.
There is but one legal question presented in these mandamus petitions filed by former Mobile County Sheriff Thomas J. Purvis and former Deputy Sheriff Allan Scott: Are they immune from liability in an action filed by a woman who was shot by a fugitive who had avoided capture?
The facts are not seriously disputed. On June 28, 1994, Jimmie Whitt shot and killed a Mississippi law enforcement officer. A BOLO ("be on the lookout") radio message was broadcast and was received by Alabama law enforcement officers in and around Mobile. *795 The BOLO message gave a Mobile address as the last known address of Whitt. At that time, Mobile County sheriff's deputy Allen Scott was responsible for serving civil process in and around Mobile. After hearing the BOLO, he approached the residence mentioned in the BOLO, under the pretense of serving process on Jimmie Whitt. Whitt met Scott at the door, but Scott did not try to arrest Whitt. Instead, Scott returned to his patrol car, ostensibly to maintain Whitt "in custody" and to report his contact to his dispatcher. Whitt later escaped from the house through the back door, hijacked a car, and fled from Mobile County into Baldwin County, where he shot and killed an enforcement officer of a state agency.
Whitt later went to Bay Minette, where he attacked Donna Akers while she sat in her automobile with her mother and daughter at a McDonald's restaurant drive-through line. Mrs. Akers was shot in the head and suffered severe permanent injuries. She sued Sheriff Purvis and Deputy Scott, claiming that both were responsible for implementing and enforcing appropriate policies and procedures for approaching, detaining, and apprehending dangerous fugitives; that they had failed to carry out their duties; and that their failure had proximately caused her injuries. Mrs. Akers's husband, Mark Hankins Akers also sued, alleging a loss of consortium.
In response to a motion to dismiss, the trial court entered an order on April 18, 1996, dismissing four counts of the first amended complaint, which sounded in negligence and wantonness. However, citing Spring Hill Lighting & Supply Co. v. Square D Co., 662 So. 2d 1141 (Ala.1995), the court refused to dismiss counts five, six, seven, and eight, which allege willful conduct by Sheriff Purvis and Deputy Scott.[1]
Defendants Purvis and Scott both have petitioned for a writ of mandamus directing the trial court to grant their motions to dismiss the remaining counts of the plaintiffs' complaint. They argue in their petitions that they are entitled to sovereign immunity as to those counts. The plaintiffs have moved to dismiss Purvis and Scott's petitions, arguing that the trial court correctly held that sovereign immunity did not apply to the claims of willful conduct, and that mandamus is not the appropriate remedy for reviewing the trial court's ruling, citing this Court's decision in Ex parte Franklin County Department of Human Resources, 674 So. 2d 1277 (Ala. 1996).
We first address the Akerses' claims that a mandamus petition is not the appropriate method for seeking review of the trial court's action. Purvis and Scott asked the trial court to give the certification required by Rule 5, Ala. R.App. P., that would have allowed them to pursue an interlocutory appeal of the order denying their motions to dismiss, but the court did not do so. However, on our initial review of the mandamus petitions we determined that they had sufficient merit to order the trial judge to file an answer and a brief, which he has done. We elect to review the merits of the petitions; we deny the respondents' motions to dismiss those petitions.
It is undisputed that Purvis and Scott were both acting within the line and scope of their employment when Whitt made his escape that led to the shooting of Mrs. Akers. Based on the record, we must conclude that Purvis and Scott have clearly shown that each of them is immune from suit under the provisions of Art. I, § 14, Alabama Constitution 1901.
Although we recognize that this Court, in Spring Hill Lighting did reaffirm the principle that "`a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law,'" 662 So. 2d at 1148, quoting Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.1989), none of the exceptions to sovereign immunity listed in Spring Hill Lighting applies here. In the first place, Spring Hill Lighting did not deal with claims against a sheriff and a deputy sheriff or other constitutional officer, but instead *796 dealt with "intentional wrongful conduct by persons involved in the bidding process," 662 So. 2d at 1147, involving state employees in the State Docks Department who allegedly intentionally rigged bid specifications to favor products provided by one manufacturer over seemingly comparable products provided by other manufacturers, in violation of the competitive bid law. Although in the present case the plaintiffs allege that Sheriff Purvis and Deputy Scott intentionally failed to follow proper procedures for approaching, detaining, and apprehending dangerous fugitives, we cannot conclude that these defendants' claims of immunity must fail. Cf. Karrick v. Johnson, 659 So. 2d 77, 79 (Ala. 1995) (upholding the defense as to claims for money damages, when interposed by a sheriff in a case involving allegations of malicious prosecution and false imprisonment against a deputy sheriff). In Karrick, this Court reiterated the limited circumstances in which a sheriff and a sheriff's deputy are amenable to suit, in light of Art. I, § 14, Alabama Constitution 1901. Also, see, Ex parte Franklin County Department of Human Resources, supra, which, addressing a claim for money damages against a state agency for "maliciously, willfully and/or wantonly and/or without probable cause" instituting a paternity action (674 So.2d at 1278), held such a claim to be barred under Art. I, § 14.
In Alexander v. Hatfield, 652 So. 2d 1142 (Ala.1994), this Court held that a deputy sheriff is afforded the same immunity from suit as a sheriff in regard to claims for monetary damages stemming from activities performed while working in the line and scope of his or her employment.
Based on the foregoing, the petitions are due to be granted.
MOTIONS TO DISMISS PETITIONS DENIED; WRITS GRANTED.
HOOPER, C.J., and ALMON, SHORES, and COOK, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 24, 256 So. 2d 281, 284 (1971).
In Parker v. Amerson, 519 So. 2d 442, 442-43 (Ala.1987), this Court specifically held:
In this case, the plaintiffs are not seeking injunctive relief or a declaration under the Declaratory Judgment Act. Rather, they are seeking money damages. Therefore, none of the exceptions to a sheriff's or deputy sheriff's sovereign immunity under Art. I, § 14, of the Constitution applies. Purvis and Scott are entitled to immunity from the claims presented against them.
Therefore, I concur to grant the petitions for the writ of mandamus.
[1] The plaintiff also named Mobile County as a defendant, but the only claims asserted in the first amended complaint against Mobile County were contained in counts one through four; therefore, the trial court's order dismissed Mobile County.
[2] See, also, Caldwell v. Brogden, 678 So. 2d 1148 (Ala.Civ.App.1996), and Tinney v. Shores, 77 F.3d 378, 383 (11th Cir.1996). In Tinney, the Eleventh Circuit, in reviewing a question of sovereign immunity with regard to sheriffs and deputy sheriffs, reached the following conclusions:
"Under Alabama law, sheriffs and deputy sheriffs, in their official capacities and individually, are absolutely immune from suit when the action is, in effect, one against the state. [Citations omitted.] The district court noted, though, that Phillips [v. Thomas, 555 So. 2d 81, 83 (Ala.1989),] and Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala.1978), identify a number of exceptions to Section 14 immunity. Specifically, the district court held that sovereign immunity does not protect state officials who act under a mistaken interpretation of law. Based on this exception, the district court found that Appellants were not entitled to sovereign immunity.
"Recent Alabama case law makes it clear, however, that the exception relied upon by the district court is inapplicable in this case. In Alexander v. Hatfield, 652 So. 2d 1142, 1143 (Ala.1994), the plaintiff sued the sheriff for negligence and bad faith service of process. The Alabama Supreme Court explained that under Article I, § 14, the only exceptions to a sheriff's immunity from suit are actions brought to enjoin the sheriff's conduct. Id. at 1143. [Citation omitted.] Because the sheriff in Alexander was being sued for damages and not injunctive relief, the court held that the exceptions to Section 14 were inapplicable and therefore the sheriff was immune from suit. Id.
"Like Alexander, Appellants in this case are being sued for damages, based upon claims of conversion and trespass, and not for injunctive relief. Therefore, Appellants are entitled to sovereign immunity from the state law claims." | December 6, 1996 |
4f352aee-4dc4-410c-8ea7-0220212f42dd | Correll v. FIREMAN'S FUND INS. COMPANIES | 505 So. 2d 295 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 295 (1986)
Lonnie CORRELL and Lonnie Correll & Associates
v.
FIREMAN'S FUND INSURANCE COMPANIES; Standard Fire Insurance Company; Walton A. Creamer; Richard D. Creamer; and Lula F. Creamer.
85-26.
Supreme Court of Alabama.
November 14, 1986.
As Corrected on Denial of Rehearing March 27, 1987.
Gary C. Sherrer, of Buntin & Cobb, Dothan, for appellants.
John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees.
BEATTY, Justice.
Lonnie Correll and Lonnie Correll & Associates filed a complaint for declaratory judgment in Houston Circuit Court for the purpose of determining whether Fireman's Fund Insurance Companies ("Fireman's Fund") should provide a defense and afford coverage to Correll and Correll & Associates for any liability which might result from the matters alleged in four underlying lawsuits brought by the Creamers. The trial court granted summary judgment in favor of Fireman's Fund, finding no duty to defend, but reserving until the resolution of the underlying lawsuits the issue of whether there is a duty to provide coverage. The court entered a Rule 54(b), A.R. Civ.P., order making the summary judgment final, and this appeal followed. We affirm.
Fireman's Fund issued a "life underwriters professional liability" policy to Correll. The policy is commonly known as an agent's "errors and omissions" policy. Correll was a general agent for Standard Life Insurance Company. The pertinent provisions of the policy are as follows:
Each of the complaints filed by the Creamers involved a separate life insurance policy that Correll, as an agent for Standard Life Insurance Company, had sold to the Creamers. In each suit, the insured alleged that Correll "forged" the insured's name to a policy loan application without the knowledge, consent, or approval of the insured. In addition, the complaints alleged that Correll "forged" the insured's endorsement on the back of the policy loan check and deposited the proceeds in his bank account. Each insured alleged that this "embezzlement" was intentional, willful, malicious, gross and/or oppressive, and done with intent to injure the insured. Correll admitted that he signed the Creamers' names to the policy loan applications and to the loan proceed checks. However, he testified that this was done based upon prior dealings with the Creamers wherein he had done this in order to obtain money to make premium payments for the Creamers.
Fireman's Fund argues that this Court should not look any further than the allegations in the complaints to determine whether Fireman's Fund has a duty to defend Correll. Since the complaints do not allege "negligent acts, errors or omissions," Fireman's Fund contends that it does not owe a duty to defend or provide coverage.
Citing Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 161 So. 2d 789 (1964), plaintiffs contend that this Court should look not only to facts alleged but to other facts which might be proved in order to determine the insured's obligation to defend.
In Pacific Indemnity Co., this Court was asked to determine whether, under the express terms of the policy at issue, the insurer was obligated to provide a defense for the insured against a claim wherein a party alleged that she had been injured by the insured's agent while he was "loading or unloading" the insured's delivery truck. The party had alleged in her complaint that her injury had been caused by the agent's negligent acts, but had not recited any underlying facts in support of this allegation. It was impossible to determine, from the face of the complaint, whether the alleged injury had been caused by the agent's actions in "loading or unloading" the truck, i.e., whether the alleged injury was a "covered injury." This Court found the provision of the policy, wherein the insurer's obligation to defend was expressed, to be ambiguous in that it was susceptible to either of two different constructions: Either the insurer was to defend (1) only a suit in which the complaint itself, without the aid of other facts, contains allegations sufficient to establish the conclusion that the "injury alleged" is covered by the policy, or (2) any suit in which the complaint alleges "any injury" which is within the policy coverage but which can be shown to be within this coverage only when facts, which do exist but are not alleged in the complaint, are taken into consideration. Because of this ambiguity, this Court properly construed the provision in favor of the insured and adopted the latter construction, i.e., we allowed the consideration of facts not alleged in the complaint to be used in determining whether, under the policy, the injury alleged was covered. However, no ambiguity exists in the provisions of the policy in the present case.
The emphasized language in the policy quoted earlier makes it clear that Fireman's Fund was to provide coverage to Correll only in those suits in which a "claim" for negligence is made. Further, Fireman's Fund is obligated to provide a defense only in those suits wherein a negligent act is "alleged." The insurance was not to apply to any claim made because of *297 any "fraudulent or criminal act or omission of the Insured."
It is clear from the record, as explained by the trial court, that the Creamers' claims against Correll charge only "intentional acts of forgery, embezzlement, intentional or wanton conversion, breach of contract, tortious bad faith, breach of contract and outrageous conduct." Therefore, under the express terms of the policy, the Creamers have stated no claim against Correll for which Fireman's Fund is obligated to provide either a defense or coverage.
Because the trial court reserved its decision on the coverage issue, the cause is remanded to that court for further proceedings on that issue.
AFFIRMED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J.,[*] and MADDOX,[*] ADAMS and HOUSTON,[*] JJ., concur.
JONES, ALMON,[*] SHORES and STEAGALL, JJ., dissent.
STEAGALL, Justice (dissenting).
I must respectfully dissent from the majority's conclusion that Fireman's Fund is not obligated to defend Correll against the Creamers' claims.
In Pacific Indemnity Co. v. Run-A-Ford Co., 276 Ala. 311, 318, 161 So. 2d 789, 795 (1964), this Court stated:
Ladner & Co. v. Southern Guaranty Insurance Co., 347 So. 2d 100 (Ala.1977), followed the holding in Pacific Indemnity without stating that its application was limited to ambiguous policy provisions. The Court also noted that, for purposes of determining a liability insurer's duty to defend, the complaint against the insured should be liberally construed in favor of the insured, and that this construction permits the court to look to facts outside the bare allegations of the complaint. Id. The holding in Ladner has been followed by this Court in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Moore, 349 So. 2d 1113 (Ala.1977), and by the Fifth Circuit Court of Appeals in Atlantic Mutual Fire Insurance Co. of Savannah v. Cook, 619 F.2d 553 (5th Cir.1980), and St. Paul Insurance Cos. v. Talladega Nursing Home, Inc., 606 F.2d 631 (5th Cir.1979).
The record in the instant case contains the affidavit of Correll, in which he states that he understood, based on prior dealings with the Creamers, that he had their permission to sign for and process loans in order to make premium payments for them. These facts are sufficient to support an allegation of error or negligence which is covered by the policy of insurance with Fireman's Fund.
In light of the foregoing, I would reverse the trial court's determination that Fireman's Fund is not obligated to defend Correll against the Creamers' claims; however, I agree with the majority that the issue of coverage should be remanded to the trial court for further proceedings.
JONES, ALMON and SHORES, JJ., concur.
[*] Although Chief Justice Torbert and Justices Maddox, Almon, and Houston did not sit at oral argument, they have studied the record and briefs and have listened to the tape of oral argument. | March 27, 1987 |
95649d94-40e2-4052-8be5-1d8afccd5e02 | Ex Parte Gilbert | 686 So. 2d 267 | 1951842 | Alabama | Alabama Supreme Court | 686 So. 2d 267 (1996)
Ex parte Jason Patrick GILBERT.
Re Jason Patrick Gilbert
v.
State.
1951842.
Supreme Court of Alabama.
November 27, 1996.
*268 James W. Parkman III, Dotham, for petitioner.
No brief filed for respondent.
Prior report: Ala.Civ.App., 686 So. 2d 266.
HOOPER, Chief Justice.
In denying the petition for the writ of certiorari, we do not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
MADDOX, ALMON, HOUSTON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur. | November 27, 1996 |
df2dce59-49cc-4e43-8a6b-e6b2511e2180 | Ex Parte Williams | 506 So. 2d 372 | N/A | Alabama | Alabama Supreme Court | 506 So. 2d 372 (1987)
Ex parte Wilson WILLIAMS.
(Re Wilson Williams v. State of Alabama).
86-485.
Supreme Court of Alabama.
March 6, 1987.
*373 Benjamin E. Pool, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
PER CURIAM.
In denying the petition for certiorari, we are not to be understood as agreeing with the following portion of the opinion of the Court of Criminal Appeals:
In Chambers, defense counsel objected to a question asked by the State after the State's witness had responded. In the absence of a motion to exclude, the appellate court held that the defendant could not successfully challenge the trial court's adverse ruling. Here, defendant seeks to validate, not impugn, the answer of the witness. It was not incumbent upon defendant to move to exclude the very evidence he was seeking to introduce. Therefore, because of the adverse ruling with respect to its admissibility, the witness's statement concerning the victim's reputation for carrying a pistol could hardly be said to be "before the jury."
We do agree, however, that the trial court's judgment was due to be affirmed as to its ruling sustaining the State's objection "on the ground that the proper predicate has not been laid to get the testimony in."
WRIT DENIED.
TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur. | March 6, 1987 |
b64380de-b066-4988-9e09-86e1e6b61098 | Ex Parte City of Jacksonville | 693 So. 2d 465 | 1950751 | Alabama | Alabama Supreme Court | 693 So. 2d 465 (1996)
Ex parte CITY OF JACKSONVILLE.
(Re Anthony W. COUCH v. CITY OF JACKSONVILLE).
1950751.
Supreme Court of Alabama.
December 6, 1996.
Rehearing Denied February 21, 1997.
O. Stanley Thornton of Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega, for Petitioner.
Douglas Corretti and Mary Douglas Hawkins of Corretti, Newsom, Cleveland, Hawkins & Cleveland, Birmingham, for Respondent.
MADDOX, Justice.
The Jacksonville City Council, acting upon a recommendation by the Planning Commission, adopted an ordinance that rezoned a 200-acre tract of land from an R-2 classification, which permits multi-family dwellings, to R-1, which restricts use to single-family dwellings. The area rezoned included a 6.2-acre tract owned by Anthony W. Couch.
Couch sued the City of Jacksonville, asking the trial court to declare that the City's action was arbitrary and capricious and constituted an unconstitutional taking of his property. The court heard the case without a jury. After Couch had presented his evidence, the court granted the City's Rule 41(b), A.R.Civ.P., motion to dismiss the action on the ground that Couch had failed to *466 present sufficient evidence to show his entitlement to any relief.
Couch appealed to this Court; we transferred the appeal to the Court of Civil Appeals, as provided in § 12-2-7(6), Ala.Code 1975. The Court of Civil Appeals reversed and remanded, holding that the judgment of the trial court was "palpably wrong in finding that Couch had failed to prove that the city's actions in downzoning his property were arbitrary and capricious" and that "[t]he city failed to establish a substantial relationship to a legitimate governmental purpose in downzoning Couch's property." Couch v. City of Jacksonville, 693 So. 2d 462, 464 (Ala. Civ.App.1995). We disagree with the Court of Civil Appeals and hold that the trial court did not err in dismissing Couch's claim.
The 200 acres in question was zoned R-2 when the City of Jacksonville adopted a comprehensive zoning plan in 1954. Couch bought 6.2 acres of that property on February 28, 1992, and made plans to develop a complex that would consist of two-family apartments, mainly for the purpose of rental profits. When Couch purchased the property, it was zoned R-2, a zoning that would permit such a development. Additionally, Couch presented evidence that before he purchased it he visited the City Planning Commission to inquire about the current zoning of this property and that he purchased the property based upon what he was told.
Upon learning of Couch's intentions to develop the property, residents who owned single-family dwellings located adjacent to Couch's property asked the Planning Commission to recommend to the City Council that an area of approximately 10 acres, including Couch's property, be rezoned from R-2 to R-1. The Planning Commission held a public hearing on April 21, 1992; Couch was present at this meeting, along with approximately 38 residents from the affected area. Couch was the only one in attendance who spoke in opposition to the proposal. The Commission postponed its decision until it held a second meeting scheduled for May 19, 1992. In the interim, however, the Commission instituted is own plan, which proposed to rezone the 200-acre tract, including Couch's land, from R-2 to R-1. At the second public hearing, on May 19, 1992, 45 residents of the affected area appeared in favor of the new Commission plan, and the only opposition to the plan was voiced by Couch. At the conclusion of the hearing, the Planning Commission rejected the original application and submitted its new rezoning plan as its recommendation to the City Council.
The City Council, upon receiving the Planning Commission's recommendation, held a public hearing on June 22, 1992. Thirty-nine residents who favored the rezoning plan attended. Couch also attended the hearing, along with his attorney. After this hearing, the City Council adopted Ordinance No. 305, which rezoned the approximately 200-acre tract from R-2 to R-1, including Couch's 6.2 acres.
Couch sought a judgment declaring the ordinance invalid and unenforceable. After hearing ore tenus testimony of six witnesses on behalf of Couch, including an expert in urban planning; Couch himself; a city employee; a friend of Couch; a building inspector and zoning administrator for the city; and a bank employee, who testified that the bank would have lent Couch the money to build the complex, the trial court granted the City's motion to dismiss Couch's action.
The sole issue is whether the trial court's judgment upholding the rezoning of the property was palpably wrong, as the Court of Civil Appeals held.
In considering the correctness of the judgment of the trial court, we apply the rule that in a nonjury case the trial court is the ultimate trier of fact and is free to weigh the evidence and the credibility of the witnesses; that the findings of fact made by the trial court are presumed to be correct, if supported by credible evidence; and that a judgment based on those findings will not be set aside unless it is clearly erroneous or palpably wrong or unjust. Hayden v. Bruno's, *467 Inc., 588 So. 2d 874, 875 (Ala.1991); see also O'Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961); Feaster v. American Liberty Insurance Co., 410 So. 2d 399 (Ala. 1982).
This Court, in Homewood Citizens Association v. City of Homewood, 548 So. 2d 142 (Ala.1989), discussed the law applicable to a court's review of a city's action in zoning cases. It stated that "[w]hen a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted." 548 So. 2d at 143. The restrictions on this Court's review of the validity of a zoning ordinance have been explained as follows:
Homewood Citizens Association, 548 So. 2d at 143 (quoting 82 Am.Jur.2d Zoning and Planning § 338 (1976)). The Court further stated that "[t]he burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body." 548 So. 2d at 144.
The record contains credible evidence to support the trial court's holding that the rezoning was not arbitrary and capricious. The original R-2 zoning was made in 1954. Kenneth Groves, an urban planner from Birmingham, who was qualified as an expert, testified on cross-examination that there were no properties in the area in question that were being used as R-2; that "this is a developing area of single family home sites." (TR. 45-46.) He recognized that the area had been rapidly developing as a neighborhood of single-family homes since 1984 and that more than 100 new homes had been built in the area during that time. Before this development, the area was vacant and was mainly used for agricultural purposes. (TR. 68.) Groves further stated that changing use of an area is a legitimate criterion for a city to use in deciding whether to rezone. (TR. 68.)
Couch argues that because he went to the zoning authority before he bought the land and was told that the land was zoned R-2, the City should be estopped from changing the zoning of this particular land; he argues that citizens should be able to rely on current zoning laws. In effect, he is arguing the doctrine of equitable estoppel. However, this Court has held that "[t]he doctrine of equitable estoppel, as a general rule, is not applicable to the state, to municipal subdivisions, or to state-created agencies," because "`[p]persons dealing with agencies of government are presumed to know the legal limitations upon their power and cannot plead estoppel on the theory that they have been misled as to the extent of that power.'" Marsh v. Birmingham Board of Education, 349 So. 2d 34, 36 (Ala.1977), quoting City of Birmingham v. Lee, 254 Ala. 237, 247, 48 So. 2d 47, 55-56 (1950).
Couch testified that he paid $60,000 for the 6.2 acres, on which was located a single-family dwelling. Couch never developed the property, but he maintained that the value had decreased since the zoning change. He claimed that his property is now worth around $15,000, that he had spent some $20,000 dollars in preparation for developing the property, and that he had lost as much as $6,400 a month in future profits with the loss *468 of the opportunity to develop. Couch, however, when cross-examined, testified that adjacent property now zoned R-1 is selling for $25,500 an acre. Furthermore, Donnie Tucker, a friend of Couch's, testified that 1 1/2 acres zoned R-2 near Couch's property had been sold for $16,000.
Couch supported his contention that the city should be estopped from changing the zoning of the property by introducing testimony indicating that the City had performed no studies and that in its minutes the City Council had stated no reasons for adopting the ordinance.
We are aware of no legal principle requiring a municipal governing body to give reasons in its minutes or to perform studies before adopting a zoning ordinance. Section 11-52-70, Ala.Code 1975 provides:
Section 11-52-76 provides:
Furthermore, in Grand v. Jefferson County, 291 Ala. 29, 33, 277 So. 2d 334 (1973), this Court stated, "We do not perceive that any requirement exists by reason of the statute which makes such studies mandatory."
Robert D. Hammond, employed with the Farmers & Merchants Bank in Anniston, testified that Couch had approached him for a loan to finance construction of a duplex on the property, but he admitted on cross-examination that no firm loan commitment was made.
The Court of Civil Appeals stated that this case was similar to Martin v. O'Rear, 423 So. 2d 829 (Ala.1982). We believe it is distinguishable from Martin. In Martin the evidence showed that "the original R-4 district had been a transitional zone between B-2 (general business) and R-2 (single-family residential) zones, [and] the new R-2 district creates an island restricted to single family dwellings, bordered on two sides by areas zoned for business (B-2) and on two sides by areas allowing multi-family dwellings (R-4)." 423 So. 2d at 831. The facts before us now are different from the facts of Martin. Couch's expert testified that the prevailing use of the land was for single-family residences (R-1) and that no R-2 use was present. This present case presents no questions of transitional spot zoning or the creation of zoning islands. The trial judge could have concluded from the evidence presented that the City Council had rezoned the area to reflect the current use of the land. Clearly, Couch has not shown that the action of the City Council was arbitrary and capricious, which is the burden the law placed upon him. In fact, based on the testimony offered on behalf of Couch, the trial court could have concluded that the City Council, in rezoning the property to conform with its current use, acted to promote the health, safety, morals, and general welfare of the community.
Based on the foregoing, we reverse the judgment of the Court of Civil Appeals and remand the cause to that court for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and HOUSTON, KENNEDY, and BUTTS, JJ., concur.
ALMON, SHORES, and COOK, JJ., dissent.
COOK, Justice (dissenting).
*469 I agree with the decision and the reasoning expressed in the opinion of the Court of Civil Appeals; therefore, I respectfully dissent.
ALMON and SHORES, JJ., concur. | December 6, 1996 |
94059ce8-bf0c-4229-8cd8-16b19f32cee2 | Collins v. Windsor | 505 So. 2d 1205 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1205 (1987)
James COLLINS
v.
Mary Ellen WINDSOR.
Mary Ellen WINDSOR
v.
James COLLINS.
85-318, 85-387.
Supreme Court of Alabama.
January 9, 1987.
Rehearing Denied April 3, 1987.
J. Cliff Heard of Jones, Murray & Stewart, Montgomery, for appellant/cross-appellee.
Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for appellee/cross-appellant.
Rehearing Denied (85-318) April 3, 1987.
STEAGALL, Justice.
Mary Ellen Windsor filed suit in the Montgomery County Circuit Court against James Collins, seeking damages for an alleged breach of the terms of the lease of a commercial building owned by Windsor. The trial court, after hearing testimony and viewing the premises, entered judgment in favor of Windsor for $7,781 plus attorney *1206 fees and costs. Subsequent to the entry of judgment, Windsor filed a motion to amend the judgment and Collins filed a motion for new trial or, in the alternative, to amend the judgment. The court denied all postjudgment motions. Collins appeals, and Windsor cross-appeals, from the trial court's judgment. We affirm.
Windsor leased the building to Collins for a term beginning March 1, 1973, and ending February 1, 1978, with a renewal option for five years. The lease was renewed through December 1, 1983, although Windsor continued to accept rent from Collins after that date. The lease provided that the lessee agreed "to permit no waste of the property, but, on the contrary to take good care of same; and upon termination of this lease, to surrender possession of same without notice, in as good condition as at the commencement of the term, or as they may be put in during the term, as reasonable use and wear thereof will permit."
Collins operated a coin laundry in the leased building, which was the use of the premises immediately prior to Collins's occupancy. In 1979, Collins closed the laundry, but kept his equipment in the building and continued to pay rent as provided in the lease. Collins finally vacated the building on April 27, 1984.
In her complaint, Windsor alleged that Collins breached the terms of the lease by permitting waste to occur to the property; by failing to give notice of the need for repairs to the roof of the building; and by failing to surrender possession of the premises in as good a condition as at the commencement of the lease. According to the testimony of Windsor, the building was "like new" at the beginning of the lease term but at the time Collins vacated the building in early 1984 "was in shambles." Although Windsor claimed damages totaling $18,491 for restoration of the building, the trial court awarded her damages totaling $7,781.
Collins claims that the trial court incorrectly applied the present cost of repair as the measure of damages under the lease. It is Collins's contention that the diminution in value of the premises is the proper measure of damages in this case because the cost of repair exceeds the loss in value of the premises. Collins cites Lowe v. Morrison, 412 So. 2d 1212 (Ala. 1982), in support of that contention. The Lowe Court stated that "[t]he proper measure of damages, where correction of defects would amount to economic waste, is the diminution in value of the house as constructed from the value it would have had if it had been constructed in a workmanlike manner." 412 So. 2d at 1213-14. The Lowe case involved allegedly defective construction of a house, and damages were sought for breach of the construction contract and for breach of an implied warranty of workmanlike performance in execution of the contract. The instant case presents different circumstances, as Windsor seeks damages for her lessee's failure to surrender possession of the building at the end of the lease term in as good a condition as at the beginning of the term, except for reasonable use and wear thereof. This is not a situation in which correction of defects would amount to waste, but rather it is one in which repairs to the building would put the premises in the condition contemplated by the parties in the lease agreement.
We think the trial court's use of the cost of repairs as the measure of damages was proper in this case. The trial court based its ascertainment of the measure of damages on the following:
C. Gamble & D. Corley, Alabama Law of Damages § 7-3, at 42 (1982). The trial court's determination of the measure of damages is supported by additional legal authority. In International Tool & Engineering Co. v. Sullivan, 389 So. 2d 138 (Ala.Civ.App.1980), the Alabama Court of Civil Appeals upheld a judgment allowing the landlord to recover the cost of repairs *1207 to a leased building that had been left by the tenants in a bad state of repair. The court found the judgment to be "properly responsive to the correct measure of damages." 389 So. 2d at 140. A general rule has been stated as follows: "[W]here an action is brought after expiration of a term for breach of a lessee's covenant to keep the premises in repair or to surrender them in good repair or in the same condition as when leased, the measure of damages is the reasonable cost of putting the demised premises into the required state of repair or the condition contemplated by the covenant." Annot. 80 A.L.R.2d 1001 (1961). In the present case, Collins had agreed to surrender the building at the end of the term in as good a condition as at the beginning of the term. The cost of repairs is the proper measure of damages, as this will return the building to the condition contemplated by the terms of the lease.
Collins makes the additional argument that the award of damages to Windsor is contrary to the evidence presented to the trial court. Under our ore tenus standard of review, the findings of the trial court are presumed correct if based upon competent evidence. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Dennis v. Dobbs, 474 So. 2d 77 (Ala.1985); First Alabama Bank of Montgomery, N.A. v. Coker, 408 So. 2d 510 (Ala.1982); Knapp v. Knapp, 392 So. 2d 527 (Ala.1980). Collins points out that the presumption that normally accompanies the judgment in an ore tenus case is rebuttable where the proof at trial is insufficient to support the material allegations on which the suit is brought and judgment rendered. First Alabama Bank of Montgomery, N.A. v. Coker, supra; Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). With these rules of review in mind, we have carefully considered the evidence of record. We find that the evidence is sufficient to support the judgment of the trial court. We are unable to say that the trial court's decision was plainly erroneous and manifestly unjust. The presumption in favor of the trial court's judgment is strengthened in this case because the trial judge made a visual inspection of the building that had been leased to Collins. Smith v. Smith, 482 So. 2d 1172 (Ala.1985); Belcher v. Versatile Farm Equipment Co., 443 So. 2d 912 (Ala.1983); Town of Helena v. Country Mobile Homes, Inc., 387 So. 2d 162 (Ala.1980).
Collins also argues that the trial court erred in failing to grant his motion for new trial on the ground that the judge should have disqualified himself from hearing this case. Subsequent to the entry of judgment, Collins learned that Mary Jacquline Windsor, the daughter of the plaintiff in this action, worked in an office located within the trial judge's suite of offices in the Montgomery County Courthouse. Collins asserts that, under the provisions of Canon 3C(1), Alabama Canons of Judicial Ethics, the parties and the public might reasonably question the trial judge's impartiality.
Canon 3C(1) provides in pertinent part:
Under Canon 3C(1), "recusal is required where facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge. Miller v. Miller, 385 So. 2d 54, 55 (Ala.Civ.App.1980); Wallace v. Wallace, 352 So. 2d 1376, 1379 (Ala. Civ.App.1977). However, recusal is not required by a mere accusation of bias unsupported by substantial fact. Miller v. Miller, 385 So. 2d 54, 55 (Ala.Civ.App.1980); Taylor v. Taylor, 359 So. 2d 395, 398-399 (Ala.Civ.App.1978)." Acromag-Viking, Inc. v. Blalock, 420 So. 2d 60, 61 (Ala.1982).
Mary Jacquline Windsor testified at the hearing on Collins's motion for new trial. She testified that she is the daughter of Mary Ellen Windsor, the plaintiff in this case. Her testimony reveals that she was employed by the Montgomery Police Department as a court liaison officer, which involved working with the district attorney's office and with all the judges. Her *1208 office was located in the Montgomery County Courthouse, within Judge Charles Price's suite of offices. Although Mary Jacquline Windsor testified that she saw Judge Price on an "every workday basis" and that she talked with his court personnel on a regular basis, she also testified that she knew all of the other judges in the courthouse and most of their personnel.
The following testimony was also given by Mary Jacquline Windsor:
The record also contains a statement by Judge Charles Price explaining the extent of his knowledge of the situation. Judge Price noted that the role served by the police liaison officer is the same for him as for every other judge. He further stated as follows:
Under the Canon 3C(1) recusal test adopted by this Court, a judge should disqualify himself if a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find that there is a reasonable basis for questioning the judge's impartiality. In re Sheffield, 465 So. 2d 350 (Ala.1984). Applying that test in this case, we do not believe the trial judge's impartiality can reasonably be questioned, as we deem the evidence insufficient to support the contention that the trial judge was biased.
Windsor has filed a cross-appeal, claiming that the trial court should have allowed damages covering the cost of replacing wiring, replacing the water heater, and repairing the ceiling tiles and insulation in the building that had been leased to Collins. We cannot agree that the trial court committed reversible error in failing to award damages to Windsor for these items. Evidence was presented which tended to show that the wiring and the water heater were placed in the building by Collins, and that these items were his personal property. We do not agree with Windsor's assertion that the trial court's failure to award damages for replacement of ceiling tiles and insulation is inconsistent with its award of damages for repair of the roof and floor tiles. The trial court not only heard testimony concerning the condition of the building, but it also made a visual inspection of the premises. Under our ore tenus rule, we find sufficient evidence to support the findings of the trial court.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur. | January 9, 1987 |
0a267b52-eeaa-4748-9570-c527d622552b | Purvis v. PPG Industries, Inc. | 502 So. 2d 714 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 714 (1987)
Barbara H. PURVIS
v.
PPG INDUSTRIES, INC.
85-483.
Supreme Court of Alabama.
January 30, 1987.
*715 Horace Moon, Jr., and William G. Jones III, Mobile, for appellant.
Edward S. Sledge III and George M. Walker of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
HOUSTON, Justice.
Plaintiff Barbara H. Purvis appeals from a summary judgment granted in favor of defendant PPG Industries, Inc. We affirm.
Summary judgment was granted to PPG on September 7, 1984. At that time, this was not certified as final under Rule 54(b), Ala.R.Civ.P, and a review of the record fails to disclose that this was requested by Ms. Purvis. At the time the summary judgment was granted, there were other defendants, and there was additional discovery by Ms. Purvis and these other defendants subsequent to the order granting PPG's motion for summary judgment. On July 10, 1985, Ms. Purvis filed a "Motion to Reconsider" PPG's summary judgment based upon certain affidavits and answers to interrogatories which were not before the Court at the time it granted PPG's summary judgment. This motion to reconsider was initially granted. However, upon further consideration, the summary judgment in favor of PPG was "reinstated." Subsequently, this summary judgment was made a final appealable judgment under Rule 54(b), Ala.R.Civ.P.
When ruling on a motion for summary judgment, a trial court may properly consider any material that would be admissible at trial and all evidence of record, as well as material submitted in support of or *716 in opposition to the motion. Fountain v. Phillips, 404 So. 2d 614 (Ala.1981); and this Court's review of the trial court's action in granting summary judgment must be based upon the evidence before the trial court at the time it granted summary judgment. Osborn v. Johns, 468 So. 2d 103 (Ala.1985).
Ms. Purvis in her brief relies heavily on facts that were not before the Court when PPG's motion for summary judgment was granted. These can not be considered by this Court. In Willis v. Ideal Basic Industries, Inc., 484 So. 2d 444 (Ala.1986), the trial court granted summary judgment to both defendants; the record reflected that no counteraffidavits had been submitted by or on behalf of the plaintiff. Later, plaintiff moved to reconsider the order granting the summary judgment, and filed in support of his motion an affidavit in which he apparently factually disputed some matters that were of record at the time the summary judgment order was entered. In discussing the standard of review, this Court wrote:
484 So. 2d at 445. This Court further wrote that Rules 56(e) and 56(f), Ala.R.Civ.P., direct how counteraffidavits are to be filed, when they should be filed, and what should be done if they are not available. Willis did not file anything to create a material issue of fact prior to entry of the summary judgment, and this Court concluded that his belated effort to remedy the situation was insufficient:
484 So. 2d at 446. Barnes v. Liberty Mutual Insurance Co., 472 So. 2d 1041 (Ala. 1985); Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala.1980); Mathis v. Jim Skinner Ford, Inc., 361 So. 2d 113 (Ala. 1978); Cooper v. Adams, 295 Ala. 58, 322 So. 2d 706 (Ala.1975). See also Moore v. Glover, 501 So. 2d 1187 (Ala.1986). This Court, on substantial precedent, holds that the trial court did not err in failing to set aside the summary judgment based on affidavits filed over 10 months after the entry or upon a deposition filed over a year after the entry, because there was no showing why the plaintiff was prevented from offering this evidence to counter that offered in support of the motion. This Court will limit the scope of its review to the evidence which the trial court had before it when it initially granted PPG's motion for summary judgment.
Ms. Purvis was a part owner and an employee of Budget Dry Cleaning and Coin Laundry ("Budget"). She was poisoned by perchloroethylene, a dry cleaning solvent used in commercial dry cleaning establishments. The evidence showed perchloroethylene results from a chemically controlled reaction of ethylene and chlorine. It is manufactured by a number of companies, including PPG. It cannot be manufactured to possess the chemical and physical properties that make it an effective dry cleaning solvent without its being a potentially hazardous substance under conditions of overexposure or improper use. PPG never made a direct sale to Ms. Purvis or to Budget. Also named as defendants in this suit were Mobile Solvent and Supply, Inc. ("Mobile Solvent"); Coin Laundry and Equipment Company, Inc.; Speed Queen Corporation; Field Industries, Inc.; Ashland Chemical Company; and Dow Chemical Company. In Ms. Purvis's brief she *717 recites that she "reached a pro tanto settlement with the remaining defendants."
PPG manufactures perchloroethylene ("perc") at its plant in Lake Charles, Louisiana, and ships the product in bulk in tank trucks to distributors such as Field Industries and Mobile Solvent. The first delivery of PPG perc was made to Budget by Mobile Solvent on May 11, 1981. This product was sold in bulk by PPG to Field Industries and was later sold by Field Industries to Mobile Solvent. Field Industries distributed the perc as its own product in its own drums, and its customer was given a choice of whether the drums were labeled or unlabeled. Field Industries delivered perc in unlabeled drums only to customers that it knew were knowledgeable about the chemical properties of perc and could be relied upon to convey safety and warning information to the ultimate users. When PPG delivered in bulk to Field Industries the perc that Field later delivered to Mobile Solvent, PPG had no way of knowing who the ultimate user would be and no way of directly providing product information or warnings to such ultimate user.
Other deliveries of PPG perc were made to Budget by Mobile Solvent on March 10, April 22, and June 25, 1982. These deliveries were of a product that had been sold in bulk by PPG directly to Mobile Solvent. On November 9, 1981, before any of these deliveries were made by Mobile Solvent to Budget, PPG, by letter with attachments, provided Mobile Solvent with all relevant product information and warning labels.[1] The following appeared in this letter: "PPG urges you, and it is your duty to pass along any hazard and safe handling information contained therein to your employees, customers, handlers or users of the above mentioned product."
PPG had no way of ascertaining the identity of the ultimate customers to whom the perc would be sold after being separated into barrels; and, therefore, PPG had no way to convey product information or warnings to the ultimate user except through its distribution. There was no issue raised as to the reliability, reputation, or competence of either Mobile Solvent or Field Industries as distributors of the PPG perc.
The warning labels which PPG provided to Mobile Solvent contained the following warnings: "Vapor Harmful," "Avoid Prolonged Or Repeated Breathing Of Vapors," "Use Only With Adequate Ventilation," "Avoid Contact With Eyes," "Avoid Prolonged Or Repeated Contact With Skin," "Do Not Take Internally," and "Do Not Eat, Drink, Or Smoke In Work Area." First aid instructions were also given.
When viewed most favorably to Ms. Purvis, the only evidence which she presented in opposition to the motion for summary judgment was that she did not receive any warnings and that the warnings given by PPG to its distributors were inadequate because she did not receive them.
Ms. Purvis's first cause of action was brought under Alabama's Extended Manufacturer's Liability Doctrine; she alleged that PPG sold perc in a defective condition unreasonably dangerous to Ms. Purvis as user or consumer of the product, which reached Ms. Purvis without substantial change in the condition in which it was sold. The second cause of action was for breach of a duty to warn Ms. Purvis of the dangerous nature of perc and of the possibility that she would be injured by exposure to it. The third cause of action was for breach of implied warranty (specifically, that the perc was defective, was not properly packaged, and was not safe when put to its intended use).
PPG admits that perc is a potentially hazardous substance under conditions of over exposure or improper use. The only evidence before the court when summary judgment was granted was that perc could not be manufactured to possess the chemical and physical properties that make it an *718 effective dry cleaning solvent without also possessing chemical and physical properties that make it a potentially hazardous substance. There was nothing before the trial court to indicate that PPG's perc was defective in terms of not being of commercial quality or of not being fit for its intended use.
Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 855 (Ala.1981).
Perc is an unavoidably unsafe product. In Stone v. Smith, Kline & French Laboratories, 447 So. 2d 1301 (Ala.1984), this Court, adopting comment k to Section 402A of the Restatement (Second) of Torts, (1965) at an unavoidably unsafe product, when properly prepared and accompanied by proper directions and warnings, is not "defective" or "unreasonably dangerous" under Alabama's Extended Manufacturer's Liability Doctrine.[2]
The Stone case involved the drug Thorazine. Comment k to Section 402A has most often been applied in drug cases; however, it has also been applied in cases involving other products: Racer v. Utterman, 629 S.W.2d 387 (Mo.App.1981) (a surgical drape), appeal dismissed, cert. denied, Racer v. Johnson & Johnson, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982); Daniels v. Combustion Engineering, Inc., 583 S.W.2d 768 (Tenn.App.1978) (asbestos installation); McMichael v. American Red Cross, 532 S.W.2d 7 (Ky.1979) (blood); McKee v. Moore, 648 P.2d 21 (Okla.1981) (intrauterine device).
Because there are many similarities between this case and these other Section 402A, comment k cases, it seems reasonable to extend comment k to an effective dry cleaning solvent such as perc. Each involves the distribution of a product that, no matter how carefully manufactured or used, can conceivably cause physical injury. Each involves a commercial situation in which the identity of the ultimate user of the product is unknown to the manufacturer. Each involves a professional "middleman" between the manufacturer and the ultimate user, a middleman who is by training, experience, and instruction familiar with the risks inherent in the use of the product. And each involves a manufacturer who has extended adequate warnings regarding product risks to the middleman.
The circumstances of this case are particularly compatible with application of the "unavoidably unsafe" doctrine. Because it was uncontested that the product was unavoidably unsafe, that the PPG perc was properly prepared, and that PPG supplied the perc to Field Industries and Mobile Solvent accompanied by all relevant product information and warnings, the trial judge acted properly in granting summary judgment in favor of PPG as to Ms. Purvis's first cause of action.
There was no error on the part of the trial court in granting summary judgment for PPG under Ms. Purvis's second cause of action, breach of a duty to warn of *719 the dangerous nature of perc and the possibility that she would be injured by it.
PPG conceded the existence of evidence satisfying these first two elements, but established that there was no material issue as to the warning element described in (c). In comment l to Section 388 it is stated that a supplier who exercises reasonable care to inform consumers of dangers of which he is aware is not subject to liability, even though the information never reaches those for whose use the chattel is supplied.
Restatement (Second) of Torts, § 388, comment l. Ms. Purvis presented no evidence in response to the motion for summary judgment to suggest that PPG used less than reasonable care in supplying product information to Field Industries or Mobile Solvent. Her only argument was that because she did not actually receive PPG's warnings, a question of fact was created as to the adequacy of PPG's efforts to warn.
Comment n to Section 388 lists three primary factors relevant to a determination of whether reasonable care has been used in the case of third-person warnings: (1) the degree of or propensity for danger that the product poses; (2) the unreasonableness of requiring the manufacturer to choose some other method of warning; and (3) the reliability of the third person to convey the warning to the ultimate user. See, e.g., Suchomajcz v. Hummell Chemical Co., 524 F.2d 19 (3d Cir.1975).
A Fifth Circuit Court of Appeals decision states even more clearly the standard to be applied: "to escape liability under clause (b), the supplier must have a reasonable belief that the user will learn of the chattel's dangerous condition through such warning as the supplier may have furnished the third person." Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182, 1189 (5th Cir.1978). Other case law is to the same effect. In Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), cert. denied, Fibreboard Paper Products Corp. v. Borel, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 (1974), the court held that where an intermediate party is notified of the danger and proceeds deliberately to ignore it and to pass the product on without a warning, the manufacturer is not liable. Id. at 1091. In Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383 (1976), the Kansas Supreme Court concluded that the manufacturer of propane gas should not be responsible for explosion injuries where the manufacturer ascertained that the distributor to whom it sold in bulk was adequately trained, was familiar with the properties of the gas and the methods for safely handling it, and was capable of passing that knowledge on to his customers. See also Doss v. Apache Powder Co., 430 F.2d 1317 (5th Cir.1970); Wilson *720 v. E-Z Flo Chemical Co., 281 N.C. 506, 189 S.E.2d 221 (1972). All of these cases recognize that a manufacturer, such as PPG in this case, ought not be held liable where it has made reasonable efforts to convey warnings and/or product information that, due to circumstances beyond the manufacturer's control, were not passed on to or received by the ultimate user. Where the third party has an independent duty to warn the ultimate user, such as that imposed by a vendor/vendee relationship (Section 388 of the Restatement,) the manufacturer is justified in relying upon the third party to perform its duty.
In Adams v. Union Carbide Corp., 737 F.2d 1453 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S. Ct. 545, 83 L. Ed. 2d 432 (1984), plaintiff claimed that her exposure to toluene diisocyanate (TDI) manufactured by Union Carbide caused respiratory injuries. The evidence reflected that Union Carbide sold TDI to General Motors Corporation, plaintiff's employer, and that GM was warned of the health hazards posed by exposure to TDI. It was undisputed that Union Carbide neither made nor attempted to make any warning to the plaintiff, and GM apparently did not do so either.
On these facts the federal district court entered summary judgment, and the Sixth Circuit affirmed. The Sixth Circuit noted that the application of comment n to Section 388 of the Restatement (Second) of Torts was in issue, and reasoned as follows in support of its decision:
Id., at 1457. This is precisely the factual background of the claim made by Ms. Purvis against PPG herein.
Ms. Purvis seeks to distinguish the Adams case, and she concludes by asking that this Court ignore the holding of the majority and adopt the reasoning of the dissent. She first argues in her brief:
There was no disputed issue of fact with regard to whether such information had been provided at the time the summary judgment motion was argued and ruled uponthe uncontroverted evidence before the court was that the production information and labels had been provided in November of 1981, long before the 1982 deliveries. Ms. Purvis never contested this evidence until the deposition of Joe White was filed on September 24, 1985, more than a year after the entry of summary judgment. At the time the summary judgment was entered there was no dispute as to whether PPG had provided safety information and product warnings to Mobile Solvent.
Ms. Purvis also tries to distinguish Adams by this argument:
California courts have also recognized that a manufacturer having no relationship with or knowledge of the ultimate user has performed its duty by providing safety information and warnings to a reasonably reliable supplier. In Groll v. Shell Oil Co., 148 Cal. App. 3d 444, 196 Cal. Rptr. 52 (1983), the plaintiff was injured as a result of an explosion that occurred while he was using stove and lantern fuel (BT-67) to light a fireplace fire. The evidence revealed that defendant A.G. Layne, Inc., bought the fuel in bulk from Shell and sold it in bulk to distributor Chase. The distributor packaged the fuel in cans and sold it to the public. Shell provided the seller with the material safety data sheet (MSDS) on the fuel and the seller passed that along to the distributor. At the close of plaintiff's case the trial court granted Shell's motion for nonsuit on the ground that it did not owe, or breach, any duty to plaintiff.
The court reasoned that Shell, like PPG in this case, could not exercise any control over the product, its distribution, or the warnings given in connection with its distribution, after it sold in bulk to A.G. Layne. To hold that Shell could still be liable despite providing information to Layne would, in the court's view, be improper:
148 Cal. App. 3d at 448-450, 196 Cal. Rptr. at 54-55. This is similar to the instant case, where PPG would have to inspect every drum sold by Field Industries and Mobile Solvent if this Court were to hold that it was not entitled as a matter of law to rely upon Field Industries and Mobile Solvent to pass along product information and warnings. Such an onerous burden is not the intent of the law.
Adams and Groll, and, to a lesser extent, even this Court's decision in Stone, all recognize that the manufacturers of some products have no effective way to convey product information or warnings to the ultimate consumer or user of the product. Whether because of bulk sales, repackaging, or product combinations, these manufacturers must rely upon downstream distributors and suppliers to do this. The law has properly evolved to the point where such reliance is permitted, so long as the manufacturer has a reasonable basis to believe that the distributor will pass along the product information or warnings. There was no issue before the trial court at the time summary judgment was entered as to the adequacy of the PPG product information and warnings, nor was there any issue as to whether Field Industries and Mobile Solvent were reputable distributors upon which PPG was entitled to rely.
The summary judgment was also proper as to the third cause of action, breach of an implied warranty. There was no evidence that the perc was defective. There was no evidence that the perc, when delivered to Field Industries or Mobile Solvent by PPG, was improperly packaged. The evidence was undisputed that proper warnings were given by PPG to Field Industries and Mobile Solvent prior to the sale of PPG perc by Mobile Solvent to Budget. Perc is an unavoidably unsafe product; however, there was no evidence that if all appropriate safety precautions are taken perc is unsafe when put to its intended use.
The action of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur.
[1] Perchloroethylene Bulletin #35C; Material Safety Data Sheet ("MSDS") #35C; Perchlor Drum label; Perkare Sales Bulletin #35D; Material Safety Data Sheet ("MSDS") #35D; Perkare Drum label; and Bulk Handling Solvents Manual.
[2] Comment k reads as follows:
Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk." | January 30, 1987 |
ec8001a4-e9fa-4d79-86a6-2f1adb53d77d | General Finance Corp. v. Smith | 505 So. 2d 1045 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 1045 (1987)
GENERAL FINANCE CORPORATION
v.
Patricia J. SMITH.
85-852.
Supreme Court of Alabama.
March 20, 1987.
*1046 James M. Ivins of Cornett & Ivins, Phenix City, for appellant.
Sidney Gene Landreau of Faulk & Landreau, Phenix City, for appellee.
PER CURIAM.
The defendant, General Finance Corporation, appeals from a judgment entered on a $20,000 jury verdict in favor of the plaintiff, Patricia J. Smith. We affirm.
The plaintiff purchased a pickup truck from Williams Motor Company in Phenix City, Alabama, and financed a portion of the purchase price through the defendant. Approximately four and a half months later the defendant repossessed the truck. Shortly thereafter, the plaintiff filed this action, seeking damages for fraud, conversion, and wrongful repossession.
The case was submitted to the jury on conflicting evidence. For purposes of our discussion, we find it unnecessary to state the tendencies of the evidence in detail. Suffice it to say that while the defendant's evidence was to the contrary, the plaintiff's evidence tended to show that she was not in default on her monthly payments at the time of the repossession and that a breach *1047 of the peace occurred during the repossession.
The defendant maintains that the judgment must be reversed and the case remanded for a new trial on the following grounds:
For the following reasons, we disagree.
The plaintiff's wrongful repossession claim is premised on the defendant's liability for the tortious acts committed by H & B Recoveries during the repossession. There was evidence from which the jury could have readily found that H & B Recoveries breached the peace while repossessing the truck and that the breach resulted in damage to the plaintiff under general theories of trespass and/or conversion.
However, the defendant contends that the undisputed evidence showed that H & B Recoveries was acting as an independent contractor when it repossessed the truck and not as its agent. Consequently, it argues that the trial court erred in denying its motion for summary judgment and its motion for a directed verdict at the close of the plaintiff's case in chief. In the alternative, the defendant argues that if the evidence was in dispute regarding the status of H & B Recoveries as either an agent or an independent contractor, then its written requested instructions stating that an employer is not liable for the tortious acts committed by an independent contractor should have been given to the jury.
Relying on the general rule that an employer is not ordinarily liable for the tortious acts committed by an independent contractor, the defendant insists that it is not liable in this case for the wrongful manner in which the plaintiff's truck was repossessed.
The general rule urged by the defendant is well settled. 41 Am.Jur.2d Independent Contractors § 24 (1968); Restatement (Second) of Torts § 409 (1965). But this general rule has important exceptions. One is that an employer is responsible for the manner of the performance of certain non-delegable duties, though done by an independent contractor. An employer who by contract or law owes a specific duty to another cannot escape liability for a tortious performance by reason of the employment of an independent contractor. Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665 (1938); State Farm Mut. Auto. Ins. Co. v. Dodd, 276 Ala. 410, 162 So. 2d 621 (1964); Robertson v. City of Tuscaloosa, 413 So. 2d 1064 (Ala.1982); 41 Am. Jur.2d Independent Contractors § 38 (1968).
The plaintiff contends that § 7-9-503, Code 1975, granted to the defendant the privilege of proceeding without judicial process in gaining possession of the truck only if that could be done without a breach of the peace. She argues that while the defendant could contract for H & B Recoveries to physically recover the truck, it could not delegate to H & B Recoveries the liability resulting from a breach of the peace. We agree.
Section 7-9-503, supra, states that "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action." (Emphasis added.) This section, which was incorporated into the security agreement executed by the plaintiff, goes farther than merely conferring upon a secured party the power to engage in self-help. See Robertson v. City of Tuscaloosa, *1048 supra. It allows the secured party to proceed without judicial process only if that can be done peacefully (i.e., without risk of injury to the secured party, the debtor, or any innocent bystanders). See also Restatement (Second) of Torts § 424 (1965) ("One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions") and § 427 ("One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another... is subject to liability for harm resulting to others from such trespass").
The legislature, in enacting § 7-9-503, supra, did not attempt to set out with specificity the safeguards or precautions which a secured party must take in order to effect a peaceful repossession. By implication, however, a secured party is under a duty to take those precautions which are necessary at the time to avoid a breach of the peace. It is axiomatic that this duty is based on sound public policy.
Assuming, without deciding, that the status of H & B Recoveries as an independent contractor was undisputed by the evidence, the defendant could not delegate to H & B Recoveries its liability for the wrongful manner in which the repossession was accomplished. The defendant is in the business of financing automobiles and trucks. The plaintiff had no knowledge of, nor was she interested in, the arrangement made by the defendant with H & B Recoveries. However, she did have a reasonable expectation that the truck would not be repossessed in violation of her security agreement. Therefore, the trial court did not err in submitting the plaintiff's wrongful repossession claim to the jury. Neither did it err in refusing the defendant's written requested jury instructions.
The trial court did not err in denying the defendant's motion to have H & B Recoveries joined as a party defendant under Rule 19, Ala.R.Civ.P. The defendant's argument that the presence of H & B Recoveries was indispensable to the action is foreclosed by paragraph (a) of that rule. H & B Recoveries claimed no interest in the action and, as previously stated, the defendant could not escape liability by hiring H & B Recoveries to repossess the truck. If the defendant felt that it had a valid claim against H & B Recoveries for all or part of the plaintiff's claim against it, it should have filed a third-party complaint against H & B Recoveries under Rule 14, Ala.R.Civ.P.
The defendant's contention that the trial court erred in refusing to grant its motion for a mistrial must also fail. The defendant argues that it was entitled to a mistrial because the plaintiff's counsel made an improper reference to the wealth of the parties during his closing argument to the jury. The record shows the following exchange during closing argument:
*1049 The trial court is vested with a wide discretion in determining whether incidents which occur during the course of a trial affect the right of either party to a fair trial, and its decision may not be reversed unless it clearly appears that its discretion has been abused. Bucyrus-Erie Co. v. Von Haden, 416 So. 2d 699 (Ala. 1982).
Although the indirect interjection of wealth into a trial as a fact to be considered by the jury is generally considered improper, we have held that the resulting prejudicial effect is not per se ineradicable. Hill v. Sherwood, 488 So. 2d 1357 (Ala. 1986). There is no hard and fast rule as to when a remark made by counsel during closing argument is deemed to be so grossly improper and highly prejudicial as to be ineradicable from the minds of the jurors notwithstanding a timely admonition from the trial court. Each case must be decided in light of the peculiar facts and circumstances involved, and the atmosphere created, in the trial of each particular case. The trial court is obviously in the best position to make that determination. Bucyrus-Erie Co. v. Von Haden, supra.
In the present case, the trial court recognized the impropriety of counsel's remark, sustained the objection to it, and admonished the jury accordingly. It is clear that the trial court did not consider the remark's effect on the jury to be so prejudicial as to be beyond cure. The record does not, in our judgment, justify a holding that the trial court abused its discretion in refusing to grant a mistrial.
Finally, the defendant contends the verdict is excessive. Our review of the evidence in this case indicates that the jury's verdict was not the result of bias, passion, prejudice, corruption, or any other improper motive.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
TORBERT, C.J., and HOUSTON, J., concur specially.
TORBERT, Chief Justice (concurring specially).
I agree that the defendant creditor is liable for the wrongful acts of the independent contractor in repossessing in a non-peaceful manner because a creditor has a non-delegable duty to repossess the collateral in a peaceful manner. However, I believe a creditor is liable only for compensatory damages that result from an independent contractor's non-peaceful repossession unless the plaintiff can prove that the creditor authorized, participated in, or ratified the independent contractor's acts. Henderson v. Security National Bank, 72 Cal. App. 3d 764, 140 Cal. Rptr. 388 (Dist.Ct. App.1977).
Punitive damages are justified when a conversion is committed in known violation of the law and plaintiff's rights. Roberson v. Ammons, 477 So. 2d 957 (Ala.1985). Without proof that a creditor knew that an independent contractor was going to breach the peace in repossessing the collateral or ratification of the independent contractor's conduct, punitive damages should not be recoverable.
In this case, the trial court charged the jury that punitive damages were recoverable based upon the independent contractor's breach of the peace. On appeal the creditor argues that it was not liable at all for the acts of the independent contractor and does not specifically challenge the propriety of awarding punitive damages. In light of the fact that the defendant did not preserve and present the issue for appellate review, we can not reach this question. White v. Law, 454 So. 2d 515 (Ala.1984). Therefore, I agree that the judgment is due to be affirmed.
HOUSTON, J., concurs. | March 20, 1987 |
94d3c7cc-aaf1-41d6-a091-dd907417a4ba | Gulf Land Co., Inc. v. Buzzelli | 501 So. 2d 1211 | N/A | Alabama | Alabama Supreme Court | 501 So. 2d 1211 (1987)
GULF LAND COMPANY, INC.
v.
Margaret S. BUZZELLI.
85-660.
Supreme Court of Alabama.
January 2, 1987.
*1212 Robert A. Wills, Bay Minette, for appellant.
Taylor D. Wilkins, Jr., of Wilkins, Bankester & Biles, Bay Minette, for appellee.
TORBERT, Chief Justice.
This case is an in rem quiet title action brought by plaintiff Gulf Land Company, Inc. ("Gulf"), under the Grove Act, Code 1975, §§ 6-6-560 to -573. The real property which is the subject of this case is a wild and undeveloped lot located south of the Dixie Graves Parkway on the Fort Morgan Peninsula in Baldwin County. The case was tried without a jury, and the facts are not in dispute.
Margaret Buzzelli bought this lot in 1976. She has visited the lot only three times, all before 1979. In 1979, Baldwin County began a new system of assessing property taxes, and for reasons unknown, Buzzelli was never notified of any taxes due in 1979. Without any notice being sent to Buzzelli, the property was sold to the State of Alabama in 1980 for the 1979 taxes. Jim Johnson III, one of the owners of Gulf, bought the lot from the State on September 5,1984. Johnson then conveyed title to Gulf on September 17, 1984. Gulf has paid all taxes since that time. Gulf filed its quiet title action on October 29, 1984; Buzzelli filed her answer on November 30, 1984, and filed a counterclaim asserting her right to redeem the lot on April 18,1985. Beginning in November 1984 and continuing up until the present time, Gulf has placed "For Sale" and "No Trespassing" signs on the lot and a "snow" fence on the dunes on this property. Gulf has also had the front corners of the lot determined by a surveyor. The trial court found that plaintiff Gulf is not entitled to relief and that defendant Buzzelli is entitled to redeem this property from the plaintiff.
Plaintiff Gulf contends that the trial court erred in failing to quiet title to the lot in Gulf. Gulf alleges that it made out a prima facie case under the Grove Act and that Buzzelli's time in which to redeem the property had expired.
In Fitts v. Alexander, 277 Ala. 372, 375, 170 So. 2d 808, 810 (1965), this Court set forth what is required under Code 1975, § 6-6-560 (then Code 1940, title 7, § 1116):
The trial court must deny relief unless one of the above situations is proven. See Hart v. Allgood, 260 Ala. 560, 72 So. 2d 91 (1954).
Gulf and those through whom it claims had not held title or paid taxes on this property for the ten years preceding the filing of the complaint; therefore, Gulf does not come within situations 2 through 4 above. Since plaintiff Gulf does not come within those three situations, the burden was on Gulf to prove that it was in actual, peaceable possession of the land when it filed its complaint. See Hart, supra. Although Gulf had color of title to the lot through its tax deed, it was not in the actual, peaceable possession of the lot when it filed its complaint. Gulf claims that it need only exercise such acts of possession which are consistent with the wild and undeveloped character of the land. This is true; however, Gulf did not begin its acts of possession until after it had filed its complaint. Gulf has not met the requirements of § 6-6-560 and is not entitled to relief thereunder.
Even if Gulf had made out a prima facie case under § 6-6-560, defendant Buzzelli would still be entitled to redeem the property under Code 1975, § 40-10-83. We have stated many times that the purpose of § 40-10-83 is to preserve the right of redemption without a time limit, if the owner of the land seeking to redeem has retained possession. This possession may be constructive or scrambling, and, where there is no real occupancy of the land, constructive possession follows the title of the original owner and can only be cut off by the adverse possession of the tax purchaser. Stallworth v. First Nat. Bank of Mobile, 432 So. 2d 1222 (Ala.1983); Hand v. Stanard, 392 So. 2d 1157 (Ala.1980); O'Connor v. Rabren, 373 So. 2d 302 (Ala. 1979).
Code 1975, § 40-10-82, does establish a "short statute of limitations" for tax deed cases. This section states that the redemption action must be filed within three years from the date when the purchaser became entitled to demand a deed for the property. We have held that this statute does not begin to run until the purchaser is in adverse possession of the land and has become entitled to demand a deed to the land. Williams v. Mobile Oil Exploration, 457 So. 2d 962 (Ala.1984). In order for the short period of § 40-10-82 to bar redemption under § 40-10-83, the tax purchaser must prove continuous adverse possession for three years after he is entitled to demand a tax deed. Stallworth, 432 So. 2d at 1224. This statute applies to cases where the land is purchased from the State, as well as to instances where the purchase is made from the tax collector. Merchants National Bank of Mobile v. Lott, 255 Ala. 133, 50 So. 2d 406 (1951).
Gulf began its acts of possession in November 1984. Buzzelli sought to redeem in *1214 April 1985. Even if Gulf's acts amount to adverse possession, the three years of continuous adverse possession that § 40-10-82 requires had not run. Buzzelli is entitled to redeem this property.
For the above reasons, the judgment of the trial court is affirmed.[1]
AFFIRMED.
JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] As the parties have stipulated, this appeal does not affect the mineral interests in this property. | January 2, 1987 |
62bd85ca-90ee-4ee7-b1ee-79a70574a119 | Ex Parte Gargis | 686 So. 2d 278 | 1951847 | Alabama | Alabama Supreme Court | 686 So. 2d 278 (1996)
Ex parte Shelby GARGIS.
In re CONSOLIDATED STORES, INC. v. Shelby GARGIS.
1951847.
Supreme Court of Alabama.
November 22, 1996.
Rodney B. Slusher, Florence, for Petitioner.
Clarence M. Small, Jr., Deborah Alley Smith and Jane G. Ragland of Rives & Peterson, Birmingham, for Respondent.
Timothy L. Dillard, Lawrence T. King and Todd A. Delcambre of Dillard, Goozee & King, Birmingham, for Amicus Curiae Fay Cashman in support of petition for writ of cert.
Prior report: Ala.Civ.App., 686 So. 2d 268.
BUTTS, Justice.
The petition for the writ of certiorari is denied.
Our denial of the petition in this case should not be taken as an approval of the reasoning in the Court of Civil Appeals' opinion.
WRIT DENIED.
HOOPER, C.J., and ALMON and COOK, JJ., concur.
HOUSTON, J., concurs in the result. | November 22, 1996 |
fcd48b86-856c-4120-9f8f-ab432235bc43 | Ex Parte Zackery | 521 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 521 So. 2d 1 (1987)
Ex parte Jessie James ZACKERY.
(Re Jessie James Zackery v. State).
85-757.
Supreme Court of Alabama.
January 2, 1987.
Rehearing Denied May 15, 1987.
Bobby Don McCarter, Ashland, for petitioner.
Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
Certiorari was granted in this case in order to determine whether the equal protection rights of Jessie James Zackery were violated when the prosecution used its peremptory challenges to strike all nine of the prospective black jurors from the venire.
Zackery was indicted on two separate charges: burglary in the third degree and theft in the second degree. These cases were consolidated for trial and on appeal. After trial by a jury, Zackery was found guilty of both offenses and was sentenced to seven years in each case, to be served consecutively. The Court of Criminal Appeals affirmed the convictions and sentences without opinion. 486 So. 2d 527.
Zackery objected in the trial court to the selection of the petit jury on the basis of equal protection grounds. The trial court, after hearing Zackery's motion to quash, denied the motion without requiring the prosecution to give explanations for striking all the blacks from the venire. On the authority of Ex parte Jackson, 516 So. 2d 768 (Ala.1986), this case is remanded to the Court of Criminal Appeals, with instructions to have the trial court determine whether Zackery is entitled to a new trial.
REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur. | January 2, 1987 |
5afb93ac-bb5a-4db9-a32f-d5af4c76ac60 | Malcolm v. King | 686 So. 2d 231 | 1950693 | Alabama | Alabama Supreme Court | 686 So. 2d 231 (1996)
Ian MALCOLM and Ian Malcolm, M.D., P.C.
v.
Terry Grant KING, as Executor of the Estate of J. Willard King, Deceased.
1950693.
Supreme Court of Alabama.
December 6, 1996.
*232 Thomas W. Christian, Deborah Alley Smith, and Jane Greene Ragland of Rives & Peterson, Birmingham, for Appellants.
J. Gusty Yearout, Deborah S. Braden, C. Jeffery Ash, and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and Oliver Frederick Wood and R. Wyatt Howell of Green, Wood, Howell & Glenn, Hamilton, for Appellee.
PER CURIAM.
This is a medical malpractice case involving claims for personal injury and wrongful death. Ian Malcolm, M.D., and Ian Malcolm, M.D., P.C. (hereinafter sometimes referred to collectively as "Dr. Malcolm"), appeal from a judgment entered on a jury verdict in favor of Terry Grant King, the executor of J. Willard King's estate.
The evidence, viewed in the light most favorable to the plaintiff, Terry King, Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988), shows the following: While driving his pickup truck on the evening of September 16, 1991, Willard King suffered personal injuries in a collision with a motor vehicle driven by Scott Mixon. Emergency personnel fixed King to a backboard and placed a cervical collar around his head and neck. King was transported to the Marion County General Hospital emergency room, where he complained of pain in his back and neck and said that he could move his toes, but not his legs. However, Dr. Johnny Bates, the emergency room physician, determined that King could move his legs and that King's sensations were normal. King smelled of alcohol, and a blood alcohol test determined that he was legally intoxicated. Dr. Bates examined King, but could find nothing physically wrong with him. Dr. Bates also ordered X-rays of King's chest, cervical spine, and lumbar spine.
The hospital's X-ray technicians had some difficulty obtaining X-rays of King, particularly one showing the lateral view of King's cervical spine that would display all 7 cervical vertebrae. The X-ray they took showed only the first 5 cervical vertebrae, missing a view of the lowermost cervical vertebrae, C-6 and C-7. Dr. Bates examined King's X-rays and determined that there were no fractures. However, because he was unable to view the C-6 and C-7 vertebrae on lateral view and fully rule out a fracture of King's cervical spine, Dr. Bates ordered a "swimmer's view" X-ray of King's cervical spine. That X-ray showed the C-6 and C-7 vertebrae, and after examining it and the other X-ray Dr. Bates saw no fractures. It is undisputed, however, that King had suffered fractures of his C-2 and C-6 vertebrae.
Although Dr. Bates had not diagnosed any spinal fractures or neurological deficiency, he admitted King to the hospital because he believed King was still under the effects of alcohol and because he suspected that a neurological problem might be detected later. Dr. Bates ordered that King be kept in a cervical collar and that neurological checks on him be done periodically. Dr. Bates then telephoned Dr. Carrol Sasser, King's personal physician, and informed him of King's accident, that X-rays had been taken of King, and that he could not find anything physically wrong with King, but that he had admitted King so that King's condition could be evaluated *233 when King was no longer under the influence of alcohol.
King was taken to his hospital room around 8:00 p.m., and a nurse's evaluation done at that time indicated that he was suffering weakness in his left shoulder, but otherwise had an active range of motion. Dr. Sasser examined King and his X-rays, but did not see any fractures indicated on the X-rays. King complained of pain all over and was given pain medication. Dr. Sasser ordered that periodic checks be done of King's vital signs and neurological conditions.
The next morning, September 17, Dr. Ian Malcolm, a board certified radiologist, went to the hospital and reviewed all the X-rays that had been taken the night before, as was his usual practice. Sometime between 9:00 and 10:00 a.m., Dr. Malcolm examined King's cervical X-rays, but identified no fractures. He spoke with Dr. Sasser, then ordered a CAT scan of King's cervical spine. Dr. Malcolm examined the results of the CAT scan, but again diagnosed no fractures in King's cervical spine. As noted previously, it is undisputed that King had suffered cervical fractures as the result of the automobile collision, and at trial expert medical testimony was presented indicating that Dr. Malcolm had breached the appropriate standard of medical care for a radiologist by failing to recognize those fractures, which were indicated on the X-rays taken at Marion County General Hospital.
In Dr. Sasser's evaluation of King that morning, he noted that King looked better, but that he was still experiencing pain in his neck, shoulder, and arms, that he was also sluggish in moving his arms, and that his grip was weak. Dr. Sasser ordered physical therapy for King.
A physical therapist saw King at about 8:00 a.m. the following morning, September 18. At that time King, who was still in a cervical collar, could not fully sit up in bed; he complained that he could not feel his hands. He also complained of pain in his neck and shoulders. His pulse rate was only 48, having fallen from 64 at midnight. The therapist performed a gross manual muscle test on King, which indicated to her that he was not a candidate for physical therapy because she noted considerable weakness in his arms and some weakness in one leg. She believed that King could not be a candidate for therapy until the cause of his muscle weakness was determined.
By about 9:00 a.m. that morning, King's pulse rate had fallen to 38. Because of King's worsening neurological condition, Dr. Sasser ordered that King be transferred to the University of Alabama at Birmingham Medical Center ("UAB").
When he arrived at UAB on the afternoon of September 18, King was put under the treatment of Dr. Winfield Fisher, a neurosurgeon. Dr. Fisher ordered lateral cervical X-rays of King. Upon viewing those X-rays, Dr. Fisher determined that King had suffered a fracture of his C-2 vertebra and a fracture subluxation of his C-6 vertebra. A subluxation of a cervical vertebra occurs when one vertebra is displaced over an adjacent vertebra so that pressure is placed on the person's spinal cord and the cord is damaged. Dr. Fisher ordered that King be placed in traction, to immobilize his neck and to prevent further neurological damage. However, King was later removed from traction while he experienced an episode of delirium tremens from alcohol withdrawal.
On September 23, Dr. Fisher performed an operation that fused a portion of King's cervical vertebrae in order to stabilize his neck. Even after the operation, King continued to suffer from severe neurological deficiencies and related health problems. He was classified as a quadriparetic, a person with permanent neurological deficiencies in both lower and upper extremities. King was transferred to the Spain Rehabilitation Center on December 30, 1991; he died on January 16, 1992, from complications of his neurological injury. His death certificate listed his cause of death as quadriparesis with cardiopulmonary compromise, spinal cord injury, cervical vertebral fracture, and a motor vehicle accident.
On October 31, 1991, Willard King and his wife Ethel King had filed a complaint against Scott Mixon, the driver of the vehicle that had struck King's truck, and Stanley Mixon, Scott's father. The complaint alleged negligence *234 and wantonness on the part of Scott Mixon, and negligent or wanton entrustment by Stanley Mixon. It also made several other claims also relating to the automobile collision, including a claim for uninsured motorist coverage with State Farm Mutual Automobile Insurance Company.
After King's death, Terry Grant King, his son and the executor of his estate, was substituted for Willard King in the pending action. Thereafter, on September 29, 1992, the complaint was amended to add claims alleging that King had suffered personal injuries and wrongful death as the result of medical malpractice. The complaint eventually named as defendants Marion County General Hospital; Southern Health Corporation, Inc.; Southern Health Corporation of Hamilton, Inc.; Dr. Johnny Bates; Dr. Ian Malcolm; Ian Malcolm, M.D., P.C.; the University of Alabama Health Services Foundation; and Dr. Winfield Fisher. The amended complaint alleged that the medical defendants had breached their duty of care by failing to recognize that Willard King had suffered cervical fractures in the automobile collision, that they had failed to give him proper treatment for cervical fractures, and that their actions had caused him to suffer neurological injury and death.
In April 1993, a suggestion of death was filed on behalf of Dr. Sasser, and his estate was later dismissed from the lawsuit. In May 1993, Terry King, as executor of Willard King's estate, reached a pro tanto settlement with the Mixons and State Farm for $65,000, executed a release, and dismissed them from the lawsuit. In May 1994, the trial court entered a summary judgment for the University of Alabama Health Services Foundation and Dr. Fisher; that judgment was made final and was not appealed.
The case went to trial in August 1995. The theory of Terry King's claims against Dr. Bates and Dr. Malcolm was that they had failed to recognize the cervical fractures indicated on the X-rays taken upon Willard King's arrival at Marion County General Hospital, and that that failure resulted in a failure to properly treat his fractures and thereby proximately caused subluxation of his cervical vertebrae, the resulting permanent neurological injury, and death. At the close of the plaintiff's case and again at the close of the evidence, both Dr. Bates and Dr. Malcolm moved for a directed verdict. The trial court denied their motions. Before the case went to the jury, Terry King reached a pro tanto settlement with Marion County General Hospital and the Southern Health Corporation defendants for $450,000, executed a release, and dismissed them from the lawsuit. The jury was unable to reach a verdict in relation to Dr. Bates, and the trial court declared a mistrial as to the claims against him. The jury returned a verdict against Dr. Malcolm, awarding $750,000 in compensatory damages for King's personal injuries. The jury also assessed $765,000 in punitive damages against Dr. Malcolm on the wrongful death claim. As they had been instructed by the trial court, the jury subtracted the $515,000 Terry King had already recovered from other defendants, leaving a $1,000,000 verdict against Dr. Malcolm. The trial court entered a judgment on the jury verdict, and thereafter denied Dr. Malcolm's motion for a JNOV or a new trial. Dr. Malcolm appeals from the judgment.
Dr. Malcolm raises several issues on appeal: (1) whether the personal injury claim against him survived King's death; (2) whether the trial court erred in denying Dr. Malcolm's motion for a directed verdict, based on the alleged insufficiency of the evidence, and in submitting the personal injury claim (if it survived) and the wrongful death claim to the jury; and (3) whether the trial court erred in denying Dr. Malcolm's motion for a new trial on the wrongful death claim on the ground that the verdict was against the weight of the evidence, or based on the alleged prejudicial effect of evidence of Willard King's pain and suffering admitted in relation to the personal injury claim.
Terry King's claims against Dr. Malcolm were based on allegations of medical malpracticethat Dr. Malcolm had breached the standard of care for a radiologist by *235 failing to recognize cervical fractures that were revealed on the X-rays taken of Willard King upon his admission to Marion County General Hospital following the automobile collision. The complaint further alleged that because of Dr. Malcolm's negligence, King was caused to proximately suffer personal injury and, eventually, death. Dr. Malcolm argues that the trial court erred in denying his motions for a directed verdict on the personal injury claim against him and in submitting that claim to the jury. Dr. Malcolm notes that although King died on January 16, 1992, the complaint was not amended to allege a claim for personal injuries against him until September 29, 1992. Dr. Malcolm points out that under Ala.Code 1975, § 6-5-462,[1] the "survival statute," an unfiled tort claim will generally not survive the death of the person with the claim. Thus, Dr. Malcolm argues that the claim based on King's personal injuries allegedly caused by Dr. Malcolm's medical malpractice did not survive King's death and should not have been submitted to the jury. Relying on King v. National Spa & Pool Institute, 607 So. 2d 1241 (Ala.1992),[2] Dr. Malcolm argues that the personal injury action against him did not survive King's death because that claim was not filed before King's death.
In response, Terry King says that the trial court did not err in denying the directed verdict motion based on Dr. Malcolm's assertion that the personal injury action did not survive. Terry King argues that the claim for personal injuries suffered by his father as the result of Dr. Malcolm's alleged malpractice survived his father's death because, he says, under Rule 15(c)(2), Ala.R.Civ.P., the personal injury claim against Dr. Malcolm relates back to October 31, 1991before his father's deaththe date the claim for personal injuries was filed against the Mixons and State Farm. Rule 15 states:
Terry King argues that the personal injuries suffered by his father as the result of alleged malpractice by Dr. Malcolm arose from the same "transaction or occurrence" as the personal injuries his father suffered because of Scott Mixon's alleged negligence in causing the motor vehicle accident and, thus, relate back under Rule 15(c)(2).
The trial court denied Dr. Malcolm's motion for a directed verdict on the claim for Willard King's personal injuries, without entering a written order. However, implicit in that ruling was a finding that the personal injury claim against Dr. Malcolm arose from the same transaction or occurrence as set forth in the original complaint against the Mixons and other defendants and, thus, that it related back under Rule 15(c)(2) to the date of the original complaint filed before Willard King's death. We must determine whether that finding is correct.[3]
In National Spa, supra, this Court stated:
607 So. 2d at 1246. However, National Spa did not answer the question presented herewhether a personal injury claim, upon which an action is filed on behalf of the decedent after his death, survives the death of the decedent by relating back under Rule 15(c)(2) to the date of the filing of the decedent's complaint alleging a personal injury claim against a different defendant filed before the decedent's death.
The general rule is that under Ala.Code 1975, § 6-5-462, an unfiled tort claim does not survive the death of the person with the claim. In Georgia Casualty & Surety Co. v. White, 582 So. 2d 487 (Ala.1991), this Court discussed the effect of Rule 15(c)(2) and the circumstances under which an amendment to a decedent's complaint, filed after the decedent's death, would relate back to the date of the filing of the original complaint filed before death:
582 So. 2d at 492 (emphasis added). In White, this Court ruled that an amendment adding a claim alleging bad faith failure to pay under an insurance policy did not relate back to the fraud claim alleged in an earlier amendment filed before the decedent's death because the claims involved two "distinct transactions, in time as well as in regard to the conduct alleged to be wrongful." Id. at 493.
The acts that formed the basis for the medical malpractice claim against Dr. Malcolm were distinctly different, both in time as well as in regard to conduct, from the acts that formed the basis for the personal injury claim filed on October 31, 1991, by Willard King and his wife against the Mixons and State Farm. We conclude, therefore, that the amendment to the complaint filed after Willard King's death, alleging medical malpractice against Dr. Malcolm, does not arise from the same "incident," White, supra, as that alleged in the original complaint filed before King's death. Accordingly, we hold that the amendment to the complaint did not relate back under Rule 15(c)(2) to the date of the original complaint and, therefore, that the personal injury claim against Dr. Malcolm did not survive Willard King's death. In so holding, we note that the plaintiff's reliance on Williams v. Woodman, 424 So. 2d 611 (Ala.1982), Ex parte Rudolph, 515 So. 2d 704 (Ala.1987), and Ex parte Jenkins, 510 So. 2d 232 (Ala.1987), is misplaced. Those cases stand for several basic propositions, none of which is pertinent to the issue presented here. First, Williams and Rudolph expressly recognize that where a person is injured by the negligent or wrongful act of another, and the injured person uses ordinary care in endeavoring to obtain medical treatment and in selecting medical and surgical help, but the injury is aggravated by negligence or unskillfulness on the part of the medical personnel, the party causing the original injury will be responsible for the resulting damages to its full extent. This rule is based on the principles that a defendant is liable for all the foreseeable injuries caused by his negligence and that it is foreseeable that an injured party will receive negligent medical care. Second, in the scenario stated above, Rudolph and Jenkins hold that the plaintiff's claim against the party causing the original injury and the plaintiff's malpractice claim arise out of a "series of ... occurrences" and may, under Rule 20, Ala.R.Civ.P. ("Permissive Joinder of Parties"), be joined in one action. Third, Williams and Rudolph acknowledge the well-established rule that a plaintiff can recover only once for a single injury. However, none of these cases stands for the proposition that the circumstances surrounding an injury-causing accident and the circumstances surrounding the subsequent negligent medical treatment for the injury constitute the same "conduct ... or *237 occurrence," so as to invoke the relation-back doctrine set out in Rule 15(c)(2).
Dr. Malcolm also argues that the trial court erred in denying his motions for a directed verdict on the wrongful death-medical malpractice claim. The standard of review applicable to a motion for a directed verdict is whether the nonmovant has presented substantial evidence in support of each element of his claim; if he has not, then a directed verdict is proper. Parker v. Collins, 605 So. 2d 824 (Ala.1992). To prove liability in a medical malpractice case, the plaintiff must prove by expert testimony that the physician breached the appropriate standard of care and that the breach proximately caused the injury complained of. University of Alabama Health Services Found., P.C. v. Bush, 638 So. 2d 794 (Ala.1994). Further, under Ala.Code 1975, § 6-5-484(a), the expert testimony must come from a physician in the same general line of practice as the defendant physician. However, as noted previously, in reviewing a trial court's ruling on a directed verdict motion, this Court must view the evidence in a light most favorable to the nonmovant, in this case Terry King. Bussey v. John Deere Co., supra.
Dr. Malcolm argues that the trial court erred in denying his motions for a directed verdict on the wrongful death-medical malpractice claim, contending that Terry King did not present substantial evidence in support of all the elements of that claim. Specifically, Dr. Malcolm argues that Terry King did not meet his burden of proof on the issue of medical causation by presenting substantial evidence that Dr. Malcolm's failure to recognize Willard King's cervical fractures when he read Willard King's X-rays the morning after the automobile collision probably caused King to suffer irreversible neurological damage and, later, death. Dr. Malcolm argues that Willard King's irreversible neurological injury occurred either on the date of the collision, before he ever viewed King's X-rays, or approximately two weeks later when, he says, King suffered a spinal cord stroke incident to his episode of delirium tremens. Dr. Malcolm points to trial testimony by his expert witness that the delirium tremens caused King to suffer a spinal cord stroke and permanent neurological injury. Alternatively, Dr. Malcolm argues that the trial court erred in denying his motion for a new trial because, he says, the jury's verdict was against the weight of the evidence.
Terry King argues that he presented substantial evidence by expert medical testimony that Willard King's permanent neurological injury was caused by the subluxation of King's cervical vertebrae, which the expert testimony indicated began occurring a short time after Dr. Malcolm failed to recognize the fractures indicated on King's initial X-rays. Terry King refers to expert medical testimony indicating that if Willard King's fractures had been recognized by Dr. Malcolm and properly treated before the subluxation, King would have recovered from the spinal fractures without permanent neurological injury. He also points to expert medical testimony indicating that Willard King's neurological injury and resulting paralysis led to an extended period of bed rest and immobility that caused King to suffer a fatal pulmonary embolism.
After thoroughly reviewing the trial record, we conclude that Terry King, through expert medical testimony, supported with substantial evidence each element of his wrongful death-medical malpractice claim against Dr. Malcolm. For example, the record contains expert medical testimony by Dr. William Wehunt, a board certified radiologist, regarding the X-rays and CAT-scan of Willard King's spine read by Dr. Malcolm at Marion County General Hospital on the morning of September 17. Dr. Wehunt testified that Dr. Malcolm breached the standard of care for a board-certified radiologist. Regarding the lateral view cervical X-ray, Dr. Wehunt testified as follows:
Regarding the "swimmer's view" X-ray, Dr. Wehunt testified:
(Emphasis added.)
Regarding the CAT-scan, Dr. Wehunt testified:
(Emphasis added.)
Dr. Horace Norrell, a board-certified neurosurgeon, testified regarding the medical causation of Willard King's neurological injury:
(Emphasis added.)
Regarding the cause of Willard King's death, Dr. Norrell testified as follows:
(Emphasis added.)
Dr. Winfield Fisher, the neurosurgeon who treated Willard King at UAB, also testified that King's death was caused by a pulmonary embolism:
(Emphasis added.)
In sum, we believe that Terry King presented substantial evidence of each element of the wrongful death-medical malpractice claim against Dr. Malcolm. The trial court properly denied Dr. Malcolm's motions for a directed verdict and his motion for a JNOV.
Dr. Malcolm contends that the trial court erred in denying his motion for a new trial on the wrongful death-medical malpractice claim. He argues 1) that the jury's verdict was against the weight of the evidence and 2) that because the personal injury claim should not have been submitted to the jury, the evidence of Willard King's pain and suffering admitted in relation to that claim *241 prejudiced the jury as to the wrongful death claim. With respect to Dr. Malcolm's weight-of-the-evidence argument, we note that the evidence was sufficient to create a jury question on the wrongful death claim. Suffice it to say that the jury's verdict was supported by the evidence. With respect to Dr. Malcolm's second argumentthat evidence of Willard King's pain and suffering was prejudicialwe note that the trial court clearly instructed the jury that two claims were being presented for its consideration, one alleging personal injury and one alleging wrongful death, and that only punitive damages could be awarded with respect to the wrongful death claim. Given the trial court's instruction, we must assume that the jury did not use the improperly admitted evidence of pain and suffering to enhance its verdict on the wrongful death claim. See Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1958).
For the foregoing reasons, the judgment, insofar as it pertains to the jury's verdict on the personal injury claim ($750,000), is reversed. The judgment, insofar as it pertains to the jury's verdict on the wrongful death claim, is affirmed. The case is remanded for the entry of a judgment for $250,000 ($1,000,000 less $750,000).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and COOK, JJ., concur.
BUTTS, J., concurs in part and dissents in part.
BUTTS, Justice (concurring in part and dissenting in part).
I concur in the majority's affirmance of the trial court's judgment in favor of Terry Grant King, as executor of the estate of J. Willard King, as to the wrongful death claim.
However, I respectfully dissent from the majority's reversal of the trial court's judgment as to the personal injury claim. I believe that, given the unique facts of this case, the personal injury claim against Dr. Malcolm should relate back, under Rule 15(c)(2), Ala.R.Civ.P., to the date of the filing of the original complaint, which was filed before Willard King's death, and, thus, that Willard King's personal-injury claim did not abate with his death. I would affirm the judgment of the trial court.
[1] Section 6-5-462 states:
"In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor."
[2] In King, this Court allowed a decedent's estate to pursue an action for the decedent's personal injuries, in addition to the wrongful death action, where the personal injury action was filed before the decedent's death.
[3] We are not persuaded by the plaintiff's contention that Dr. Malcolm waived this defense by not amending his answer to assert it before the trial. Dr. Malcolm raised the survival statute as a defense to the personal injury claim on the first day of the trial, and it appears that this issue was litigated with the consent of the parties. See Rule 15(b), Ala.R.Civ.P. | December 6, 1996 |
373726f6-424a-4d83-ab55-c6516d71af91 | Stallings v. BLDG. RENOVATION FIN. AUTH. | 689 So. 2d 790 | 1950851 | Alabama | Alabama Supreme Court | 689 So. 2d 790 (1996)
STALLINGS & SONS, INC.
v.
ALABAMA BUILDING RENOVATION FINANCE AUTHORITY.
1950851.
Supreme Court of Alabama.
November 27, 1996.
Rehearing Denied February 21, 1997.
Marvin H. Campbell, Montgomery, for Appellant.
*791 Roger L. Bates and Edwin O. Rogers of Hand Arendall, L.L.C., Birmingham, for Appellee.
MADDOX, Justice.
This is a sovereign immunity case. Stallings & Sons, Inc. ("Stallings"), sued the Alabama Building Renovation Finance Authority ("Authority"), alleging that the Authority had breached its contract with Stallings. The trial court entered a summary judgment in favor of the Authority, on the basis that the Authority was immune from suit pursuant to the provisions of Art. I, § 14, Ala. Const. 1901, which provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Stallings appealed. We hold that the Authority is not an arm of the state for purposes of § 14, and that, therefore, the Authority is not immune from suit. Consequently, we reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion.
Act No. 90-602, Ala. Acts 1990, authorized the creation of the Authority for the purpose of renovating, maintaining, and operating certain state office buildings in Montgomery. Pursuant to Act No. 90-602, the Authority was incorporated as a public corporation; the governor, the finance director, and the state treasurer serve as its governing body. In 1992 the Authority undertook to renovate the seventh floor of the Folsom Administrative Building, located in the capitol complex in Montgomery. As required by law, the renovation project was competitively bid and Stallings submitted the lowest bid. The Authority awarded the bid to Stallings, and on February 4, 1993, Stallings and the Authority entered into a contract for the renovation project. Stallings completed the renovation work on or around July 5, 1993, and was paid $1,088,683.55. Stallings claims that $18,239.45 remains unpaid for work performed pursuant to this contract.
Stallings also alleges that it entered into another agreement in the form of a "change order" to the original contract, pursuant to which Stallings agreed to strip and repaint the exterior of the Folsom Building for a fee of $454,444. Stallings says that it then subcontracted with L & L Painting, Inc., to complete the work contemplated by this change order.[1] In January 1995, Finance Director Jimmy Baker, on behalf of the Authority, notified Stallings that the Authority was rescinding the change order. On April 28, 1995, Stallings filed this action against the Authority, alleging that it had improperly rescinded the change order, which Stallings argues was legally binding, and seeking damages.
Both parties moved for a summary judgment. The Authority argued that it was immune from suit and that even if it were not, the change order was never approved and that, therefore, no contract existed between Stallings and the Authority for the exterior work. The trial court held a hearing on the motions and entered a summary judgment in favor of the Authority, stating that "only one ground need be addressed because it is dispositive of this action," i.e., whether the Authority was "an arm of the state and therefore constitutionally immune from suit pursuant to Alabama Const., Art I, § 14." (R. 438.) The trial court found that the Authority was an arm of the state and was, therefore, immune from suit.
The issue is whether Stallings's breach of contract action against the Authority is really an action against the state under § 14, Ala. Const.1901, and therefore barred by the doctrine of sovereign immunity.
The proper test to determine whether the Authority is an arm of the state and therefore immune from suit is found in Armory Commission of Alabama v. Staudt, 388 So. 2d 991 (Ala.1980), where this Court held:
388 So. 2d at 993, citing State Docks Commission v. Barnes, 225 Ala. 403, 406-07, 143 So. 581, 584 (1932).
Applying the law enunciated in Staudt, the trial court found:
(R. 438.)
The Staudt test examines the complete relationship between the state and the entity seeking immunity from suit; therefore, we must first review the powers delegated to the Authority in § 41-10-456. This section provides that the Authority shall have, among other powers, the power "to sue and be sued and to prosecute and defend, at law or in equity, in any court having jurisdiction of the subject matter and of the parties thereto." In Staudt, this Court construed a legislative provision similar to the one here, i.e. one authorizing the Armory Commission to "sue and be sued," and noted that, because the Alabama Constitution prohibits actions against the state, the legislature cannot consent to such an action if the entity is immune from suit. Staudt, 388 So. 2d at 993. Although, such a clause is not determinative of an Authority's status, it does show the intent of the legislature to create a separate entity rather than an agency or an arm of the state.
Second, we must analyze the relationship between the Authority and the state. Section 41-10-466, Ala.Code 1975, provides that "[a]ll obligations incurred by the authority and all bonds issued by it shall be solely and exclusively an obligation of the authority and shall not create an obligation or debt of the state of Alabama." Stallings argues that, in light of the inclusion of this language in the enabling legislation, the Authority, if it is an arm of the state, cannot perform its necessary functions without violating § 213, Ala. Const.1901, which provides that "any act creating or incurring any new debt against the state, except as herein provided for, shall be absolutely void."[3] We agree. "It has been repeatedly held that a public corporation is an entity separate and distinct from the State, and that debts of such corporation are not debts of the State, within the purview of Section 213." Opinion of the Justices, 270 Ala. 147, 148, 116 So. 2d 588 (1959). In Edmonson v. State Industrial Development Authority, 279 Ala. 206, 210, 184 So. 2d 115, 119 (1966), this Court said: "Bonds issued by a public corporation that is a separate entity from the State will not constitute a new debt of the State within the meaning of Section 213, as amended." (Emphasis added.) See also Knight v. West Alabama Environmental Improvement Auth., 287 Ala. 15, 246 So. 2d 903 (1971). "A public corporation is a separate entity from the state and from any local *793 political subdivision." Coxe v. Water Works Bd., 288 Ala. 332, 337, 261 So. 2d 12 (1972).
The Authority argues that because the governor, the finance director, and the state treasurer are members of the board of directors of the Authority, the Authority is an arm of the state. However, the composition of the Authority's board of directors is not substantially different in this respect from many other authorities. Many authorities include state officials as members of their boards of directors. We have found no precedent holding that membership on an authority's board of directors of the governor, the finance director, the state treasurer, or, for that matter, any state officer is determinative of whether an authority is an entity that could be sued or one that is immune from suit.
Finally, we must examine the nature of the function performed by the Authority. This function is expressed in § 41-10-450, Ala. Code 1975, where the legislature expressed its reasons for establishing the Authority:
The function of the authority is intricately intertwined with its relationship to the state. If the Authority is an arm of the state rather than a separate entity, then many of its functions that necessarily incur debt could possibly violate § 213, Ala. Const.1901. Having already determined that the Authority is a separate entity and not an arm of the state, we need not examine this factor any further.
The facts in this case are clearly distinguishable from those found in State Docks Commission v. Barnes, a case relied on by this Court in Staudt, in which this Court held that the State Docks Commission was an arm of the state and thus immune from suit for the following reasons: the state owned the docks facilities in its own name; the Commission operated the docks facilities as an agent of the state and not as a separate entity; the funds generated by the state docks facilities belonged to the state, and in the lawsuit at issue in that case, those funds would have been subjected to liability, because "a lawsuit directly affecting a state contract or property right is tantamount to a suit against the state." Staudt, 388 So. 2d at 993.
In contrast, the Authority holds title to the property it is charged with maintaining and, in effect, has rights separate from the state, affecting that property and those rights are subject only to the dissolution of the Authority. The conveyance in Section 41-10-470, Ala.Code 1975, provides that the Authority "shall be invested with all rights and title that the State of Alabama had in the property conveyed [the real property on which the following buildings are located: the Alabama State House, the Folsom Administrative Building, the Public Health Building, the former Judicial Building, the Public Safety Building, the Archives and History Building, and the State Office Building], thereby, subject to the right of reverter to the state upon dissolution of the authority." Moreover, a separate account in the state treasury was created for all proceeds derived from the sale of any bonds issued by the Authority and it is "subject to be drawn on by the authority" for the purposes described therein. § 41-10-468, Ala.Code 1975.
Based on the foregoing, we believe that it is clear that the Authority was created as a separate entity, that it is not an arm of the state, and that it is not, therefore, immune from suit under § 14.
However, in reviewing the trial court's summary judgment, we have not considered whether the Authority would have been entitled to a summary judgment on any issue other than sovereign immunity. Even though a trial court's judgment based on faulty legal reasoning will not be disturbed on appeal if a proper basis for that judgment *794 can be found, Boykin v. Magnolia Bay, Inc., 570 So. 2d 639, 642 (Ala.1990), we have not considered whether the Authority would have been entitled to a summary judgment on the merits.
The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, KENNEDY, and COOK, JJ., concur.
BUTTS, J., dissents.
[1] We are unable to determine whether any of this work was done, but that fact is not determinative in our disposition of this action.
[2] The act creating the Authority was enacted in 1990, and the "Judicial Building" referred to in that act was apparently the building at 445 Dexter Avenue, formerly occupied by the Alabama Supreme Court and the Alabama Court of Criminal Appeals. In 1990, the Alabama Judicial Building Authority issued bonds to construct what is now referred to as the judicial building at 300 Dexter Avenue and which the judicial department has occupied since late 1993. The Alabama Judicial Building Authority holds title to this judicial building.
[3] Section 213, as amended by Amendment No. 26, further provides, in pertinent part: "After the ratification of this Constitution, no new debt shall be created against, or incurred by the state, or its authority, except to repel invasion or suppress insurrection." | November 27, 1996 |
ccc06b79-3a1a-4c99-8e44-45b8d2c8756e | Ex Parte James | 684 So. 2d 1315 | 1951610 | Alabama | Alabama Supreme Court | 684 So. 2d 1315 (1996)
Ex parte Fob JAMES, Jr., et al.
(Re Charles LANGFORD, et al. v. Fob JAMES, Jr., et al.).
1951610.
Supreme Court of Alabama.
November 19, 1996.
Champ Lyons, Jr. of Helmsing, Lyons, Sims & Leach, Mobile, and William P. Gray, Jr., Legal Advisor to the Governor, for Governor Fob James.
Robert A. Huffaker and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Phil Richardson.
David H. Marsh, Birmingham, for Albert McDonald.
William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham, for Robert E. Lowder, James T. Tatum and Charles Langford.
Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Amici Curiae Michael A. Figures, President Pro Tempore of the Alabama Senate, W. H. Lindsey, Chair of the Committee on Rules of the Alabama Senate, and Hinton Mitchem, Chair of the Committee on Confirmations of the Alabama Senate.
*1316 ALMON, Justice.
The question presented in the petition for the writ of mandamus is whether the statute governing venue of quo warranto proceedings, Ala.Code 1975, § 6-6-591, governs the cause below and requires a transfer of that cause from the Circuit Court of Montgomery County to the Circuit Court of Lee County.
A complaint was filed in the Circuit Court of Montgomery County by Charles Langford, individually and in his official capacity as a member of the Alabama Senate; Robert Lowder and James T. Tatum, each individually and "in his official capacity as a member of the Auburn University Board of Trustees"; and "each of them on behalf of the State of Alabama pursuant to [Ala.Code 1975,] § 6-6-595." Named as defendants were
The complaint alleges that the defendants have attempted to oust the plaintiffs from their positions as members of the Auburn University Board of Trustees. The first count of the complaint commences an action of quo warranto, and concludes:
A second count of the complaint seeks declaratory and injunctive relief.
The defendants responded with a motion to transfer the action to the Circuit Court of Lee County, citing, among other things, § 6-6-591(c), Ala.Code 1975. The circuit court denied the motion to transfer.
Section 6-6-591 provides, in pertinent part:
(Emphasis added.)
The Board of Trustees of Auburn University constitutes a "body corporate":
Ala.Code 1975, § 16-48-1. The main campus and the administrative offices of Auburn University are in Lee County, and the motion to dismiss asserts, without contradiction by the plaintiffs, that the June 1996 meeting of the Board of Trustees referred to in the complaint *1317 occurred in Lee County. "The Board of Trustees of Auburn University shall hold its regular annual meeting at the institute [i.e., at Auburn University, formerly Alabama Polytechnic Institute] on the first Monday in June, unless the board shall, in regular session, determine to hold its meeting at some other time and place." Ala.Code 1975, § 16-48-7 (emphasis added).
We are clear to the conclusions that the plaintiffs' quo warranto action is an action "to try the right to a corporate office" within the meaning of § 6-6-591(c); that "the corporation has its principal office" in Lee County; and that, therefore, venue of the quo warranto action is in Lee County. The plaintiffs argue that their complaint alleges wrongful "acts ... done or suffered" in Montgomery County and that, therefore, § 6-6-591(c) allows this action to be brought in Montgomery County. Even if some acts germane to the cause of action took place in Montgomery County, we hold that the specific provision of § 6-6-591(c) regarding actions to try the right to a corporate office govern, in this case, over the general provision regarding acts done or suffered. As a matter of statutory construction, specific provisions ordinarily govern over general ones. Murphy v. City of Mobile, 504 So. 2d 243 (Ala. 1987).
"[Q]uo warranto, not declaratory judgment, is the exclusive remedy to determine whether or not a party is usurping a public office." Reid v. City of Birmingham, 274 Ala. 629, 638, 150 So. 2d 735, 743 (1963); Ex parte Sierra Club, 674 So. 2d 54, 57 (Ala. 1995); Talton v. Dickinson, 261 Ala. 11, 72 So. 2d 723 (1954). The essence of the complaint is the assertion that the defendants Richardson and McDonald are attempting to usurp Lowder and Tatum's positions as members of the Board of Trustees of Auburn University. Thus, § 6-6-591(c), providing for venue of quo warranto actions, governs the venue of this action.
We note that Rule 81(a), Ala. R. Civ. P., provides, in pertinent part: "In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute: ... (23) Quo warranto or actions in the nature thereof" (emphasis added). Of course, venue of quo warranto actions is provided by statute, in § 6-6-591(c).
The cause is due to be transferred to the Circuit Court of Lee County. That court may entertain any incidental request for declaratory, injunctive, or other relief necessary to effectuate its judgment.
WRIT GRANTED.
HOOPER, C.J., and SHORES, HOUSTON, and COOK, JJ., concur.
INGRAM and BUTTS, JJ., dissent.
MADDOX, J., recuses.
[1] Amendment 161 repealed § 266 of the Constitution and adopted replacement provisions. Section 16-48-1 of the Code corresponds to the provisions of Amendment 161, except for the outdated citation to § 266 of the Constitution. | November 19, 1996 |
b70e21ba-02ca-479b-9265-90fec1ea3fcc | Wiggins v. State Farm Fire and Cas. Co. | 686 So. 2d 218 | 1950777 | Alabama | Alabama Supreme Court | 686 So. 2d 218 (1996)
Melissa WIGGINS
v.
STATE FARM FIRE AND CASUALTY COMPANY.
1950777.
Supreme Court of Alabama.
November 27, 1996.
W. Cameron Parsons of Parsons & Sutton, Tuscaloosa, for Appellant.
Micheal S. Jackson of Beers, Anderson, Jackson & Smith, P.C., Montgomery, for Appellee.
MADDOX, Justice.
The issue is whether the trial court erred in denying the plaintiff's motions to proceed against the defendant's insurance carrier after the plaintiff had obtained a default judgment against the defendant. We hold that Alabama law requires the plaintiff to bring a *219 separate action against the insurance carrier. Therefore, the trial court did not err, and we affirm.
Melissa Wiggins was struck in the face by Chris Sanders while attending a fraternity party at the University of Alabama. As a result of the blow, Wiggins lost several teeth and has undergone implant surgery. Sanders is a student at the University of Alabama, and at the time of the incident was covered under his parents' homeowner's insurance policy with State Farm Fire and Casualty Company.
Wiggins sued Chris Sanders and the fraternity in the Tuscaloosa Circuit Court on November 9, 1993. She alleged that Sanders had committed an assault and battery on her and that the fraternity had negligently or wantonly failed to provide a safe and secure environment for its visitors and guests and had thereby caused her injuries. The fraternity and Wiggins entered into a pro tanto settlement agreement, and the claim against the fraternity was dismissed. Wiggins's claim against Sanders was set for trial on May 8, 1995, but Sanders failed to appear; the trial court entered a $100,000 default judgment against Sanders. Subsequently, Wiggins filed motions to add State Farm as a defendant and to apply the proceeds of the insurance contract to satisfy the default judgment. Wiggins's motions were entitled "Motion to Add State Farm Fire & Casualty Company as an Additional Defendant" and "Motion to Apply Proceeds of the Insurance Contract to Satisfy the Default Judgment." Wiggins claims that these motions were filed pursuant to Rule 69, Ala. R. Civ. P., and §§ 27-23-1 and 27-23-2, Ala.Code 1975.
The trial court held that Rule 69, Ala. R. Civ. P., and §§ 27-23-1[1] and 27-23-2,[2] Ala. Code 1975, did not authorize the procedure the plaintiff sought to follow and that she was required to bring a separate independent action against State Farm. State Farm claims that it has meritorious defenses to any such action, on the grounds that its insured failed to give it proper notice of any alleged claim and that the particular incident was not covered under the terms of the policy.
As stated earlier, the issue is whether Wiggins was required to bring a separate action against State Farm or whether her motion to add State Farm as a defendant after the entry of the default judgment was procedurally authorized.
It is important to note that Wiggins has not sued State Farm. This Court, in Insurance Company of North America v. Davis, 274 Ala. 541, 150 So. 2d 192 (1962), discussed this question and determined "that the legislature [in enacting § 12, Tit. 28, Code of Ala.1940, predecessor to § 27-23-1, -2, Ala. Code 1975] intended that all such proceedings must be brought against the defendant in the action at law and the insurance company, as joint respondents." 274 Ala. at 542, 150 So. 2d at 194. Moreover, in Davis "it [was] logically deduced that the [insurer by and through the] insured is a `necessary party' *220 under the rule that all persons having a material interest in the litigation or who are legally or beneficially interested in the subject matter of the suit and whose rights or interests are sought to be concluded thereby are necessary parties." 274 Ala. at 543, 150 So. 2d at 194.[3]
In Maness v. Alabama Farm Bureau Mutual Cas. Ins. Co., 416 So. 2d 979 (Ala.1982), this Court reasoned that "[o]nce an injured party has recovered a judgment against the insured, the injured party may compel the insurer to pay the judgment. The injured party, however, can bring an action against the insurer only after he has recovered a judgment against the insured and only if the insured was covered against the loss or damage at the time the injured party's right of action arose against the insured tort-feasor." 416 So.2d at 981-82; see also Fleming v. Pan American Fire & Cas. Co., 495 F.2d 535, 540 (5th Cir.1974); Haston v. Transamerica Ins. Services, 662 So. 2d 1138, 1139 (Ala.1995).
Rule 21, Ala. R. Civ. P., provides, in pertinent part, that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just," and this Court has held that the trial court is given "broad discretion" when determining whether to add or drop a party. Wood v. City of Huntsville, 384 So. 2d 1081, 1083 (Ala. 1980). See also State Highway Department v. Morgan, 584 So. 2d 499, 502 (Ala.1991).
Wiggins argues that in Haston v. Transamerica Ins. Services this Court approved the procedure she is attempting to follow. Haston is distinguishable, however, because the issue presented here was not before this Court in Haston and was not addressed.
Based upon the foregoing, we affirm the ruling of the trial court.
AFFIRMED.
HOOPER, C.J., and SHORES, HOUSTON, and BUTTS, JJ., concur.
COOK, J., concurs in the result.
COOK, Justice (concurring in the result).
I concur in the result because I do not believe the court abused its discretion in denying the motion to add State Farm as a defendant. I do not believe it necessary in every circumstance for a judgment creditor to file a separate, independent action against an insurance company in order to seek to satisfy an outstanding judgment. See Haston v. Transamerica Insurance Services, 662 So. 2d 1138 (Ala.1995), and Rice v. State Farm Fire & Casualty Co., 628 So. 2d 582 (Ala.1993).
[1] Section 27-23-1 provides: "As to every contract of insurance made between an insurer and any insured by which such insured is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such insured is responsible, whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurer shall become absolute and the payment of the loss shall not depend upon the satisfaction by the insured of a final judgment against him for loss, or damage or death occasioned by the casualty. No such contract of insurance shall be canceled or annulled by any agreement between the insurer and the insured after the insured has become responsible for such loss or damage, and any such cancellation or annulment shall be void."
[2] Section 27-23-2 provides: "Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury, or death or for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment." (Emphasis added.)
[3] Davis was decided before the adoption of the Alabama Rules of Civil Procedure merged law and equity. | November 27, 1996 |
aaf0381c-1e99-4347-bfdc-0ec5ba4f4408 | Ex Parte Anonymous | 502 So. 2d 1215 | N/A | Alabama | Alabama Supreme Court | 502 So. 2d 1215 (1987)
Ex parte ANONYMOUS.
(Re: Anonymous v. State, 7 Div. 577).
No. 85-1542.
Supreme Court of Alabama.
January 16, 1987.
*1216 James C. Pino of Mitchell, Green, Pino & Medaris, Alabaster, for petitioner.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 502 So. 2d 1211 (1986).
BEATTY, Justice.
Certiorari was granted to determine whether the Court of Criminal Appeals was correct in deciding that the testimony of witness Helen Eades, that her interview of the minor victims of the defendant's alleged sex crimes supported the original child abuse report, was not hearsay.
This Court finds that such testimony was hearsay, and we agree with and adopt the dissenting opinion of Presiding Judge Bowen, concurred in by McMillan, J., as the opinion of this Court.
Let the judgment of the Court of Criminal Appeals be reversed, and this cause be remanded to that court, with directions to order a new trial. It is so ordered.
REVERSED AND REMANDED.
All the Justices concur, except STEAGALL, J., who dissents. | January 16, 1987 |
0254b68e-e44a-4b2b-8f5a-2cf0e061ab4f | Rhyne v. H & B MOTORS | 505 So. 2d 307 | N/A | Alabama | Alabama Supreme Court | 505 So. 2d 307 (1987)
Harvey RHYNE a/k/a Harvey Tackett
v.
H & B MOTORS, a partnership, and Johnny Wayne Borders.
85-988.
Supreme Court of Alabama.
January 16, 1987.
Rehearing Denied March 27, 1987.
*308 Clyde D. Baker of Baker & Driskill, Guntersville, for appellant.
Larry W. Dobbins, Boaz, for appellees.
BEATTY, Justice.
This is an appeal from a judgment based on a directed verdict entered at the close of the evidence against the plaintiff, Harvey Rhyne a/k/a Harvey Tackett (hereinafter "Rhyne"), and in favor of the defendants, H & B Motors, a partnership, and Johnny Wayne Borders, in an action for malicious prosecution. We reverse and remand.
On August 9, 1985, Rhyne purchased a 1974 Pontiac Grand Prix automobile from the defendant, H & B Motors. Rhyne paid $100 down and agreed to pay the balance of $824 in weekly installments: $75 on August 16, 1985, and $250 each week thereafter. Rhyne received a bill of sale for the automobile and signed a promissory note and a security agreement.
In negotiations prior to the sale, Rhyne identified himself as "Harvey Rhyne." No mention of any alias was made. He also stated that he was employed at Steel Processing Service in Albertville, Alabama. *309 He said that he had been working there for about three months and that he usually worked between 40 and 50 hours a week. No attempt was made by anyone at H & B Motors to verify any of this information prior to the completion of the sale.
Although the record is not clear as to the exact time, sometime after the sale, Johnny Borders, a partner in H & B Motors, became aware of the fact that, contrary to Rhyne's assertion, he was not employed at Steel Processing Service. Borders learned that Rhyne, the day before the sale, had quit his job at Steel Processing Service, after having worked there only about three weeks.
On September 18, 1985, after Rhyne had failed to make any payment on the automobile beyond the original down payment, Borders went to Grove Oak, Alabama, to locate Rhyne and to determine why the payments had not been made. Rhyne had given as his address: Route 1, Box 66, Grove Oak, Alabama.
Apparently, while asking for directions to Rhyne's residence, Borders was informed by persons familiar with the address that the name "Harvey Rhyne" was incorrect. Borders was told that the person he was seeking was known, in Grove Oak, at least, only as "Harvey Tackett." Borders also learned, although the record does not indicate how, that mail had been received at this address in the name of "Harvey Tackett."
As he approached the house, Borders noticed that a car which resembled the one Rhyne had purchased from H & B Motors was parked nearby. However, this car was in a much worse condition than that which had been purchased. Indeed, from the record, it is unclear whether this was the same car Rhyne had purchased from H & B Motors. Borders's attempt to get someone in the house to answer his knocks at the door were unsuccessful. However, he testified that he heard persons moving around inside. Borders left the premises.
Later, on the same day as his visit to Rhyne's residence, Borders decided to seek a warrant for Rhyne's arrest. A warrant for his arrest was issued by a magistrate for Marshall County, and, on that same day, Rhyne was arrested on a charge of first degree theft of property by deception (§§ 13A-8-2, -3, Code of 1975). Although Borders indicated in his testimony at trial that he discussed the possibility of Rhyne's arrest with the district attorney, no assertion was made that such a warrant was sought on the basis of any advice given by such district attorney.
Rhyne was released from jail on October 29, 1985. The record indicates that the charge against him was dismissed on motion of the district attorney. No costs were taxed.
On December 3, 1985, Rhyne filed suit in Marshall Circuit Court against both Borders, in his individual capacity, and H & B Motors, for malicious prosecution. At trial, at the close of the evidence, each party moved for a directed verdict. The trial judge directed a verdict in favor of the defendants. He gave two grounds for the directed verdict: (1) that probable cause for the arrest had been established as a matter of law; and (2) that Rhyne had compromised his claim in order to gain the dismissal of the criminal action. Rhyne appeals. We consider the propriety of the directed verdict on the latter ground first.
As authority for the determination that Rhyne had lost his right to sue for malicious prosecution because of a compromise, the trial court cited Chatman v. Pizitz, Inc., 429 So. 2d 969 (Ala.1983). In Chatman, it was explained:
429 So. 2d at 971-72. While the validity of this principle is undisputed, it does not control under these facts.
In Chatman, we stated:
429 So. 2d at 972. Although the defense of compromise does not affirmatively appear in the pleadings, it is clear that evidence regarding compromise was admitted on behalf of the defendant without objection. It is also clear that evidence was offered by the plaintiff to rebut the inference of a compromise by him.
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b), A.R.Civ.P. This includes those affirmative defenses which are raised by evidence admitted at trial without objection. Haynie v. Byrd, 429 So. 2d 973 (Ala.1983); Bischoff v. Thomasson, 400 So. 2d 359 (Ala.1981). See C. Wright & A. Miller, Federal Practice & Procedure, § 1492 (1971).
After the issue of compromise had been raised, Rhyne offered proof to show that he had not "compromised" or "settled" any claim. He testified that he gave no rights to the defendants they did not already have by way of the original contract to purchase the automobile. Borders agreed with his testimony. In effect, Rhyne argues that the defendants simply decided to drop the charges and abandon the prosecution. This evidence, we believe, is sufficient under the rules set out in Chatman to entitle Rhyne to go to the jury on the issue of compromise.
Normally, a decision sending the issue of compromise to the jury would be determinative of an appeal from a directed verdict in a malicious prosecution case, because it would require, as did the facts in Chatman, that the issue of probable cause also be determined by the jury. See Chatman, supra. However, independent of the compromise issue, special circumstances in this case necessitate our addressing the issue of whether probable cause existed.
Stated simply, the evidence indicated that Rhyne and the defendants had entered into a security agreement when the automobile was purchased. The facts establishing the existence of this valid security agreement are undisputed.
"Probable cause," as the term is employed in actions for malicious prosecution, is such a state of facts in the mind of a prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person is guilty of the crime charged. Gulf States Paper Corp. v. Hawkins, 444 So. 2d 381 (Ala.1983); Green v. Norton, 233 Ala. 489, 172 So. 634 (1937).
Rhyne was charged with the offense of theft of property in the first degree (§ 13A-8-3, Code of 1975). Theft of property is defined in § 13A-8-2 as follows:
Under former Alabama law, it was recognized that one who obtained goods on credit by false pretenses involving the statement of a fact as to the pecuniary condition or financial responsibility of the accused was chargeable with the crime of false pretenses. See, e.g., Dennis v. State, 16 Ala.App. 115, 75 So. 707 (1917). False pretenses, as it was defined in the past, would now constitute the crime of theft as it is defined in § 13A-8-2, Code of 1975. St. Paul Fire & Marine Ins. Co. v. Veal, 377 So. 2d 962 (Ala.1979). However, under the former law, the statutory definition of "owner," as presently set out in § 13A-8-1(8), did not exist. That section provides:
The undisputed testimony makes it clear that a valid security agreement existed between Rhyne and H & B Motors. Under this agreement, H & B Motors is a "secured party" as defined in § 7-9-105(1)(m), Code of 1975, and Rhyne is a debtor as defined in § 7-9-105(1)(d), Code of 1975. As a result, H & B Motors is not the "owner" of the automobile, of which the defendants charged Rhyne with theft. See § 13A-8-2, Code of 1975. Thus, as a matter of law, probable cause to charge Rhyne with the crime of theft of property did not exist.
It is argued that the drafters of the criminal code did not intend to decriminalize a situation where a person knowingly induces a party by deception to part with his property and also to enter into a security agreement. Instead, the argument continues, the drafters of the criminal code intended to decriminalize only the situation where a debtor defaults on an obligation secured by a security interest and the debtor refuses to return the collateral. We must reject this argument.
It has always been recognized that criminal statutes must be given a strict interpretation in favor of those persons sought to be subjected to their operation. Smith v. United States, 360 U.S. 1, 79 S. Ct. 991, 3 L. Ed. 2d 1041 (1950); Ex parte Evers, 434 So. 2d 813 (Ala.1983), on remand, 434 So. 2d 817 (Ala.Crim.App.1983); Graddick v. Jebsen S. (U.K.), Ltd., 377 So. 2d 940 (Ala. 1979). The language of § 13A-8-1(8) is clear and unequivocal. The construction of § 13A-8-1(8) suggested by this argument does not comport with this policy.
For the reasons stated, the judgment must be reversed and the cause remanded. It is so ordered.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
TORBERT, C.J., dissents.
ALMON and STEAGALL, JJ., not sitting.
TORBERT, Chief Justice (dissenting).
I disagree with the majority's conclusion that under these facts there could not be a finding of probable cause with respect to the crime of theft by deception as defined in Code 1975, § 13A-8-2(2).
There are two categories of actions by Rhyne that the defendants claim create probable cause. First are those actions taken when Rhyne initially purchased the car. Those include using a false name and misrepresenting his employment status. Second are Rhyne's actions in not paying for the car or returning it to the defendants. As to the second category of actions, I agree that those actions do not support a finding of probable cause with respect to a charge of theft by deception. However, I believe that the actions in the first category do support a finding of probable cause.
The critical issue is whether the defendant is an "owner," as defined in Code 1975, § 13A-8-1(8). The majority correctly concludes that obtaining goods on credit by false pretenses would constitute a crime under § 13A-8-2, but in my opinion, incorrectly creates an exception when the seller of the goods also takes a security interest in the goods obtained by false pretenses.
At the time the misrepresentations were made to obtain the car, the defendants in fact were the owners, because at that time the defendants had possession of the car and had not yet taken a security interest in the car. The misrepresentations were made to induce the defendants to transfer possession of the property and to enter into *312 a debtor-creditor relationship covered by a security agreement.
I do not believe that the legislature created the exception that the majority finds. The comments to § 13A-8-1(8) indicate that most of the definitions are derived from the Illinois, New York, or Michigan codes. As to the definition of "owner," only the New York code has a similar definition. The New York code defines an "owner" as:
N.Y. Penal Law § 155.00(5) (McKinney 1975).
The comments to that section explain why "owner" is so defined:
People v. Gluck, 188 N.Y. 167, 80 N.E. 1022 (1907), illustrates that under prior law a secured party could charge a defaulting debtor with larceny if he refused to return the collateral. In People ex rel. Travis v. Sheriff of Cortland County, 275 A.D. 444, 90 N.Y.S.2d 848 (1949), a case factually different but somewhat analogous (lienholder in possession of property charges titleholder with larceny after titleholder takes property), Justice Hefferman noted that while the indictment did charge a crime, the whole controversy revolved around the validity of the lien and such a controversy should be disposed of in a civil action.
Apparently, the drafters of the criminal code made a decision to decriminalize the situation where a debtor defaults on an obligation secured by a security interest and refuses to return the collateral. However, I see no indication that the drafters intended to decriminalize a situation where a person knowingly induces a party by deception to part with his property and also to enter into a security agreement.
Therefore, I respectfully dissent. | January 16, 1987 |
e5561a38-73c0-43b6-b8a6-6ecb5e4486bb | Doremus v. WORKERS'COMP. SELF-INSURERS | 686 So. 2d 252 | 1951252 | Alabama | Alabama Supreme Court | 686 So. 2d 252 (1996)
Rebecca DOREMUS
v.
BUSINESS COUNCIL OF ALABAMA WORKERS' COMPENSATION SELF-INSURERS FUND, et al.
1951252.
Supreme Court of Alabama.
December 13, 1996.
David R. Donaldson and Pamela D. Beard of Hogan, Smith & Alspaugh, P.C., Birmingham, for Appellant.
John J. Coleman III, Gregory C. Cook, and Tom S. Roper of Balch & Bingham, Birmingham, for Business Council of Alabama Workers' Compensation Self Insurers Fund.
Terry L. Raycraft, Associate Counsel, Alabama Insurance Department, for Michael DeBellis, as the Commissioner of Insurance.
James W. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery, for amici curiae Association of County Commissions of Alabama and Association of County Commissions of Alabama Self-Insurance Fund.
Ken Smith, Montgomery, for amici curiae the Alabama League of Municipalities.
Tom Roper, Birmingham, for amici curiae the Municipal Workers Compensation Fund, Inc.
BUTTS, Justice.
Rebecca Doremus, an Alabama taxpayer seeking to represent other Alabama taxpayers, appeals from the trial court's dismissal of her complaint. The trial court, holding that Doremus had no standing to bring this action, granted the defendants' motion to dismiss. We agree with that holding and, thus, we affirm.
Doremus filed a complaint entitled "Original Class Action Complaint and, in the Alternative, Petition for Writ of Mandamus," purportedly on behalf of all the citizens of the State of Alabama who benefit from the State general fund and/or the State special education trust fund. The complaint named as defendants the Business Council of Alabama Workers' Compensation Self-Insurers Fund (the "BCA Fund") and all other similarly situated workers' compensation self-insurer funds; Jeff Sessions, as attorney general for the State of Alabama; and Michael DeBellis, as the commissioner of the Alabama Department of Insurance. Doremus's complaint alleged that the BCA fund and other similar funds are "domestic insurers" that, she says, *253 were required to have paid to the State a 1% tax on premiums received before January 1, 1995,[1] but that the State has failed to collect that tax. Doremus sought for herself and other members of her class an amount of money equal to 1% of the gross premiums charged to Alabama businesses by the BCA Fund and other similar funds in relation to workers' compensation insurance for the 5 years preceding January 1, 1995.
Although Doremus's complaint raised the issue whether the BCA Fund and other workers' compensation self-insurer funds organized under Ala.Code 1975, § 25-5-9, are, within the meaning of § 27-4-5, "domestic insurers" that owe taxes to the State, we cannot address that issue because Doremus is not a proper party to bring this action. In other words, Doremus has no standing to bring this lawsuit.
Standing, like jurisdiction, is necessary for any valid legal action. To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit. Eagerton v. Williams, 433 So. 2d 436 (Ala.1983); Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932 (Ala.1983); Bagley v. City of Mobile, 352 So. 2d 1115 (Ala.1977); Boger v. Jones Cotton Co., 234 Ala. 103, 173 So. 495 (1937); Stewart v. White, 128 Ala. 202, 30 So. 526 (1901).
While it is firmly established that an Alabama taxpayer has standing to bring an action against the State challenging expenditures of State funds, Hunt v. Windom, 604 So. 2d 395 (Ala.1992); Zeigler v. Baker, 344 So. 2d 761 (Ala.1977), it is also established that an Alabama taxpayer, such as Doremus, has no standing to bring a lawsuit against the State and another Alabama taxpayer seeking the collection of State taxes allegedly owed by the other taxpayer, even though the State fails to act. The exclusive power and authority to sue for collection of State taxes lies with the State. Powers v. United States Fid. & Guar. Co., 236 Ala. 389, 182 So. 758 (1938); State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So. 2d 767 (1971).[2] In Powers, this Court stated the following regarding a taxpayer's action, brought on behalf of the plaintiff and all other Alabama taxpayers, seeking to collect money allegedly owed to the State by the surety on a bond:
236 Ala. at 392-93, 182 So. at 761 (emphasis added).[3]
Accordingly, only the State, through its attorney general or other proper representative, has standing to sue to collect taxes allegedly owed to the State. Because the State did not bring this action, we cannot rule on the issue whether workers' compensation self-insurer funds are domestic insurers required by § 27-4-5 to pay a premium tax to the State.
*254 The law set out in Powers and Zeigler, and their progeny is that a taxpayer has a tangible legal interest in money that has already become property of the State, but no such interest in money that is the property of another taxpayer, although the money is allegedly owed to the State. Thus, whether Doremus's filing was intended as a complaint commencing a civil action or as a petition for a writ of mandamus, she lacks standing to sue to recover money she alleges is owed to the State. We affirm the trial court's judgment dismissing her complaint.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
[1] Doremus relies on Ala.Code 1975, § 27-4-5. That section was repealed effective January 1, 1995.
[2] Other jurisdictions that have answered this question have ruled similarly. See Debevoise v. Back, 359 A.2d 279 (D.C.App.1976); People ex rel. Morse v. Chambliss, 399 Ill. 151, 77 N.E.2d 191 (1948); Stietenroth v. Monaghan, 237 Miss. 305, 114 So. 2d 754 (1959).
[3] Doremus argues that Zeigler v. Baker, 344 So. 2d 761 (Ala.1977), by allowing a taxpayer action against the State, implicitly overruled Powers. However, the holding in Zeigler, which allowed a taxpayer action to enjoin the payment of State funds as a pension to former governors, does not contradict Powers. Powers also recognized that a taxpayer could sue the State to "enjoin the payment of State funds when it is proposed to pay them on an unconstitutional act." 236 Ala. at 391, 182 So. at 759. Thus, Zeigler recognized the same right of a taxpayer to sue the State that was already recognized in Powers. | December 13, 1996 |
f3a7646a-4d54-4b52-ba78-8cfffa53b5ae | Wal-Mart Stores, Inc. v. City of Mobile | 696 So. 2d 290 | 1941890 | Alabama | Alabama Supreme Court | 696 So. 2d 290 (1996)
WAL-MART STORES, INC.
v.
CITY OF MOBILE and County of Mobile.
1941890.
Supreme Court of Alabama.
November 27, 1996.
Rehearing Denied April 18, 1997.
John R. Bradwell and Laura L. Crum of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for Appellant.
Wanda J. Cochran, Mobile, for City of Mobile.
Florence A. Kessler, Mobile, for Mobile County.
KENNEDY, Justice.
The opinion of September 13, 1996, is withdrawn and the following opinion is substituted therefor:
The plaintiff, Wal-Mart Stores, Inc. ("Wal-Mart"), appeals from a summary judgment entered in favor of the defendants, the City of Mobile, Mobile County, and others (collectively "Mobile"). At issue is whether computer software is intangible personal property. If it is, then Mobile is forbidden from collecting gross receipts taxes on computer software. The parties agree that Mobile has the authority to collect gross receipts taxes on sales of tangible personal property and that if computer software is tangible personal property, then it is properly included in the gross receipts calculations on which Wal-Mart is taxed.
Wal-Mart sued Mobile, seeking to enjoin it from collecting gross receipts taxes on sales of computer software by Wal-Mart. The trial court held that computer software was tangible personal property and entered a summary judgment in favor of Mobile. On appeal, Wal-Mart relies on State v. Central Computer Servs., Inc., 349 So. 2d 1160 (Ala. 1977), arguing that it stands for the general proposition that computer software is intangible personal property, and, thus, cannot be included in a gross receipts tax formulation.
In many jurisdictions, early cases held that computer software was intangible property. See, e.g., South Cent. Bell Tel. Co. v. Barthelemy, 643 So. 2d 1240, 1244-45 (La.1994). Often, courts based their reasoning in part on "the idea that the information contained on the software[[1]] is the product being sold" and *291 that the choice of a tangible medium for conveying it was incidental to this fact"that this information can be transmitted in many forms, including over the telephone." Matter of Protest of Strayer, 239 Kan. 136, 716 P.2d 588, 591 (1986).
This reasoning appears to underlie this Court's 1977 decision in Central Computer Servs., Inc., where the Court held that computer software was intangible property for purposes of a use tax on tangible personal property. The Court suggested that the buyer seeks the information, rather than the medium by which it is conveyed, and emphasized that the information is not dependent on a software-type medium to be conveyed that it can be conveyed by several means, for example, by telephone. Also, the Court discussed then common software mediums and concluded that there was only an "incidental physical commingling of the intangible information sought ... and the tangible magnetic tapes and punched cards themselves." Id. at 1162. Finally, the Court quoted District of Columbia v. Universal Computer Assocs., Inc. 151 U.S.App. D.C. 30, 465 F.2d 615 (D.C.Cir.1972): "What rests in the machine [from the software] is an intangible"knowledge"which can hardly be thought to be subject to a personal property tax.'" Central Computer Servs., Inc., 349 So. 2d at 1163.
Since the time of the Central Computer Servs. case, there has been a shift in the view of many courts:
Barthelemy, 643 So. 2d at 1245.
One of the changes that has occurred in this state and elsewhere, which was perhaps not reasonably to be anticipated in 1977, is the proliferation of "canned" computer software, such as is sold by stores like Wal-Mart. As a practical matter, the marketing of such "canned" software presumes that the information sought will be conveyed by way of a tangible medium. In this sense, the merchandiser is making a sale of tangible property, like the sale of a book.
Barthelemy, 643 So. 2d at 1246.
Based on the foregoing, we hold that the trial court properly entered the summary judgment in favor of the defendants. To the extent that Central Computer Servs. would dictate a different holding, it is overruled. However, we note that the Mobile ordinance taxing sales of computer software was adopted in 1993 and that until we issued our original opinion in this case on September 13, 1996, the ordinance conflicted with the law as it had been set out in Central Computer Servs. For this reason, we hold that our ruling in this case should have prospective application only, i.e., that Mobile cannot collect gross receipts taxes on sales of computer software that occurred before September 13, 1996.
OPINION OF SEPTEMBER 13, 1996, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
ALMON, SHORES, COOK, and BUTTS, JJ., concur.
MADDOX, J., concurs specially.
HOOPER, C.J., dissents.
MADDOX, Justice (concurring specially).
I simply would note that I wrote a lengthy dissent in State v. Central Computer Services, Inc., 349 So. 2d 1160 (Ala.1977), advocating that computer software be defined as tangible personal property for tax purposes. The holding here is consistent with that position.
*292 HOOPER, Chief Justice (dissenting).
Computer software is intangible personal property. This Court has previously so held. State v. Central Computer Servs., Inc., 349 So. 2d 1160 (Ala.1977). The majority today states that the marketing of "canned" computer software "presumes that the information sought will be conveyed by way of a tangible medium." However, whether the software is "canned" or not, the purchaser is primarily buying the intangible knowledge on the software, and the software is incidental to the purchase. The fact that it is presumed that the information will be "conveyed by way of a tangible medium" does not make the purchase primarily one of tangible personal property. Alabama caselaw precedent has been based on whether the personal property is primarily tangible or is primarily intangible. Under Alabama case precedent, personal property does not have to be entirely intangible in order to be considered intangible. State Department of Revenue v. Kennington, 679 So. 2d 1059 (Ala.Civ.App.1995).
The majority cites South Central Bell Tel. Co. v. Barthelemy, 643 So. 2d 1240 (La.1994). However, the holding of the Louisiana Supreme Court in Barthelemy was based on the civil law viewpoint of that State regarding property. The basis of the holding was § 461 of the Louisiana Civil Code, which stated:
Quoted at 643 So. 2d at 1244. The Barthelemy court said:
643 So. 2d at 1244.
The civil law does not determine whether a thing purchased is primarily tangible or primarily intangible. The civil law considers anything "tangible" that has any property. Adopting the logic of the Civil Code of Louisiana could potentially cause serious problems with the caselaw of Alabama on the question whether particular property is tangible or intangible.
I would reaffirm the Alabama caselaw and hold that computer software is intangible property. However, if the majority of the Court wishes to hold that computer software is "tangible," it should do so through the application of common law concepts of what is tangible property and what is intangible property. Alabama is a common law state. I am concerned that the majority today changes Alabama caselaw as to what is tangible property and what is intangible property and in doing so relies on the civil law precedent of Louisiana. The civil law precedent of Louisiana is inapplicable to the common law precedent of Alabama. Therefore, I must dissent.
[1] In a narrow sense, "software" is synonymous with "program." "Program" has been "defined as `a complete set of instructions that tells a computer how to do something.'" South Cent. Bell Tel. Co., 643 So. 2d at 1246. | November 27, 1996 |
46975b17-4649-4efb-b62d-0af8a0e67a7d | ALFA MUT. INS. v. Nationwide Mut. Ins. | 684 So. 2d 1295 | 1940678, 1940756 | Alabama | Alabama Supreme Court | 684 So. 2d 1295 (1996)
ALFA MUTUAL INSURANCE COMPANY
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, as subrogee of Friedlander Realty, Inc.
John HALL
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, as subrogee of Friedlander Realty, Inc.
1940678, 1940756.
Supreme Court of Alabama.
November 1, 1996.
*1296 D. Scott Wright, William H. Sisson and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for Alfa Mutual Insurance Company.
Robert H. Smith of Collins, Galloway & Smith, Mobile, for John Hall.
J. Stuart Wallace, Mobile, and J. F. Janecky, Mobile, for Nationwide Mutual Insurance Company.
COOK, Justice.
Alfa Mutual Insurance Company ("Alfa") and John Hall appeal from a judgment in favor of Nationwide Mutual Insurance Company ("Nationwide"), as subrogee of Friedlander Realty, Inc. ("Friedlander"). As to Alfa, we reverse the judgment of the trial court and enter a judgment for Alfa; as to Hall, we reverse the judgment and remand.
These appeals are from a judgment entered following this Court's remand of this action in Nationwide Mutual Insurance Co. v. Hall, 643 So. 2d 551 (Ala.1994) ("Nationwide I"). Because the issues in this appeal turn on the interpretation to be accorded our holdings in that case, we shall discuss that case at length, and, for the convenience of the reader, we set forth the factual and procedural background of this dispute as stated in Nationwide I:
643 So. 2d at 553-57 (emphasis added; footnote omitted).
This Court affirmed the judgment against Alfa, concluding that Nationwide and Alfa were co-providers of "primary insurance coverage of the same insurable interest, subject matter, and risk," and, consequently, that "they share[d] liability in accordance with the proportion that the limits of each policy [bore] to the total limit of insurance applicable to the loss." 643 So. 2d at 561. We held, therefore, that, notwithstanding its $300,000 payment to Packerthe liability limit under its policy with HallAlfa was further liable to Nationwide for its pro rata share of the $250,000 Nationwide paid to settle Packer's claims against Friedlander, because, we explained, Alfa had paid its policy limits with full knowledge that Friedlander was also seeking indemnification. 643 So. 2d at 562. As to the judgment in favor of Hall, however, "we [held] that the circuit court erred in holding that the indemnity provision of the Friedlander management agreement was unenforceable." Id. at 557. On October 17, 1994, Alfa tendered to the Mobile County Circuit Court clerk a check in the amount of $119,417.85, which represented the amount of the judgment affirmed in Nationwide I plus interest.
On remand of this cause, Nationwide moved, on July 19, 1994, for a summary judgment against Hall, contending that it was entitled, as a matter of law, to recover from Hall $279,873.02 plus pre-judgment interest. That figure included $192,500, which represented the balance of the $250,000 Nationwide had paid in settlement that remained above the $57,500 we ordered Alfa to pay in contribution. Id. at 555 and 563. It also included an amount representing the second half of Nationwide's attorney fees and defense expenses, the first one-half of which we ordered Alfa to pay in contribution. Id. Hall opposed the motion, contending that the management agreement was ambiguous as to whether Friedlander was to be indemnified from Hall's personal assets; that when he executed the management agreement, he did not intend to indemnify Friedlander beyond the extent of the coverage he purchased from Alfa; and that he was entitled to a jury trial on the issue of the parties' intent.
On January 17, 1995, the trial court entered a summary judgment, stating in part: "Nationwide is entitled to a judgment against Hall in the amount of $286,092.30. See Nationwide at 557." However, it further held: "Alfa is obligated to indemnify Hall because its contractual liability coverage covers plaintiff's claims, Nationwide at 553, and it expended its limits with full knowledge of Friedlander's claim against Hall for indemnity. See Nationwide." (Emphasis added; citations omitted.) Citing Ala.Code 1975, § 27-23-2, the trial court then ordered Alfa to "pay the judgment entered against Hall in the amount of $286,092.30." Both Alfa and Hall appeal from this judgment. In order to facilitate a logical presentation of the issues, we will address Hall's appeal first.
Hall contends that the trial court erred in holding him liable as a matter of law for the amount Nationwide paid in settlement plus expenses and interest that remained after the contribution that we ordered from Alfa in Nationwide I. He contends that the trial court misinterpreted our holding in Nationwide I as it concerned his liability under the management agreement.
Nationwide contends that the holding in Nationwide I as to Hall's liability under the management agreement mandates the summary judgment entered against Hall. In support of this contention, it quotes the following portion of our discussion in Nationwide I:
643 So. 2d at 557 (emphasis in original). This statement, Nationwide contends, indicates that Nationwide I held Hall to be liable, personally and individually, to indemnify Friedlander fully for the amount it paid to settle Packer's claims against it, which holding, it contends, is the law of this case.
We disagree with Nationwide's contentions. On its face and considered alone, this statement might suggest that we had, in fact, determined all aspects of Hall's liability under the management agreement. That suggestion must be rejected, however, because we did not intend by that statement to blur the distinction between the species of claim to be indemnified and the extent of personal liability for, or mode of satisfaction of, that claima distinction that is crucial to this case.
The only issue presented in Nationwide I by the trial court's ex mero motu disposition of Nationwide's breach-of-contract claim involved the species of liability arising under the management agreement. That issue was presented in the context of the rule adopted in Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), stated in Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala.1983), as follows:
431 So. 2d at 945 (first emphasis added). Thus, the narrow issue in Nationwide I relating to Hall was whether the provision in the management agreement under which Hall agreed to indemnify Friedlander "from all damage suits and claims arising in connection with [the] property and from all liability for injuries to persons or property while in, on, or about the premises," evidenced "clear[ly] and unequivocal[ly]," Industrial Tile, 388 So. 2d at 176, an intent on Hall's part to include indemnity for claims arising from Friedlander's own negligence, although the management agreement contained no "language specifically referring to the negligence of [Friedlander]." Nationwide I, 643 So. 2d at 556 (emphasis added).
In concluding that it expressed that intent sufficiently to satisfy the rule, we answered the narrow question as to what was to be indemnified, namely, claims based on Friedlander's negligence. But we did not consider, address, or decide whether the management agreement was clear and unambiguous in every other respect. In particular, we did not consider whether the management agreement was ambiguous as to how Friedlander was to be indemnified, that is, whether he was to be indemnified solely through liability coverage, as Hall construes it, or through a combination of insurance and Hall's personal assets, as the trial court held. That question is a separate one and is the one we now address.
As to the manner in which Friedlander was to be indemnified, the management agreementwhich was drafted by Friedlanderprovided:
(Emphasis added.)
The management agreement, including this provision in particular, is ambiguous if it "is reasonably susceptible [of] more than one *1300 meaning." Files v. Variety Wholesalers, Inc., 554 So. 2d 1068, 1069 (Ala.Civ.App.1989). Indeed, "[t]he writing is unambiguous if only one reasonable meaning clearly emerges." Id. (Emphasis added.)
The agreement we have here is not an unambiguous writing. The first provision emphasized above requires Hall to purchase insurance in an amount sufficient to protect him and Friedlander equally. Arguably, at least, Hall and Friedlander would not be protected equally if, as Nationwide contends, Hall may be required to indemnify Friedlander from his personal assets. They would be protected equally only if Hall carried liability insurance in an amount sufficient to reimburse Friedlander fully for any claims against him.
The second provision emphasized above further supports this construction. Pursuant to that provision, Friedlander could purchaseat Hall's expenseany amount of insurance it deemed necessary to ensure that it would be indemnified fully from claims against it. The logic of this latter provision loses much of its force under the position advanced by Nationwide.
Nationwide, moreover, has essentially conceded the ambiguity of this provision. Specifically, at page 7 of the "Appellant's Response to Application for Rehearing" filed in this Court following its opinion in Nationwide I, Nationwide stated:
(Emphasis added.) For these reasons, we cannot say that Hall's interpretation of the management agreement, although not the only one possible, is unreasonable, and, consequently, we cannot say that the management agreement is un ambiguous in this respect.
Having concluded, as it is within our province to do, Dill v. Blakeney, 568 So. 2d 774, 778 (Ala.1990), that the management agreement is ambiguous, we note that "its meaning may be clarified by parol evidence of facts and circumstances aliunde and in pais." Foster & Creighton Co. v. Box, 259 Ala. 474, 478, 66 So. 2d 746, 750 (1953). In a case such as this one, and "[w]hen ... there is such evidence[,] it becomes the province of the jury to ascertain the truth of the evidence and draw inferences from [it], and then on proper instructions interpret the contract in the light of the facts established by the evidence." Id.
In opposition to Nationwide's summary judgment motion, Hall presented an affidavit, stating in pertinent part:
In summary, the trial court was not bound by Nationwide I, as it apparently thought itself to be, to hold that the management agreement unambiguously required Hall to indemnify Friedlander from his personal assets for the amount of the claim exceeding the policy limits. On the contrary, the ambiguity of the provisions as to whether Friedlander was to be indemnified from Hall's personal assets, coupled with the extraneous evidence produced, precluded a summary judgment for Nationwide. Cf. J. Paul Jones Hosp. v. Jackson, Coker & Assocs., 491 So. 2d 972 (Ala.Civ.App.1986) ("Ambiguity in the contract precludes ... summary judgment"). Consequently, as to Hall, the summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
Nationwide concedes that the trial court's judgment requires Alfa "ultimately [to] pay Nationwide twice." Brief of Appellee, at 26. It justifies this result on the ground that Alfa's "obligations," Nationwide argues, "are based upon two different [theories of recovery]." Id. The first theory is, of course, the one under which it recovered in Nationwide I, based on Alfa's status as a co-provider of "primary insurance coverage of the same insurable interest, subject matter, and risk." 643 So. 2d at 561.
Nationwide's second theory of recovery from Alfa is based on its construction of Ala.Code 1975, § 27-23-2,[1] under which, Nationwide contends, it became a "judgment creditor" of Alfa because of the judgment entered against Hall. Under this theory, Nationwide seeks to recover now the same amount it sought unsuccessfully to recover in the proceedings before our remand in Nationwide I. Recovery under this theory would require Alfa, which, because of its settlement with Packer and the judgment in Nationwide I, has already paid over $420,000 on a policy that contained a $300,000 limitation of liability, to pay an additional $286,092.30.
In opposition to this theory, Alfa argues (1) that § 27-23-2 does not apply to the parties in this case and (2) that a second recovery is foreclosed by this Court's holding in Nationwide I, which, Alfa contends, conclusively determined the extent of Alfa's liability for contribution to Nationwide. We need not address the applicability of § 27-23-2, because we hold that the judgment against Alfa contravenes the holding in Nationwide I, which is now the law of this case.
In Nationwide I, after concluding that the Alfa and Nationwide policies provided primary coverage and that Alfa had settled with Packer at its own risk, we said:
643 So. 2d at 562 (emphasis added). We agree with Alfa that Nationwide I squarely held that, because "Nationwide provided primary coverage for Friedlander," it "should share the settlement costs and expenses." Reply Brief of Appellant Alfa Mutual Insurance Company, at 5 (emphasis added). Otherwise stated, Nationwide I held that Alfa and Nationwide must share the cost of the very expense for which Nationwide now seeks full reimbursement.
"It is well established that on remand the issues decided by an appellate court become the `law of the case,' and that the trial court must comply with the appellate court's mandate." Gray v. Reynolds, 553 So. 2d 79, 81 (Ala.1989); Stewart v. ATEC Associates, Inc., 652 So. 2d 270, 273 (Ala.Civ.App.1994). See also Walker v. Carolina Mills Lumber Co., 441 So. 2d 980 (Ala.Civ.App.1983).
The law of this case, as established in Nationwide I, prohibits a second recovery by Nationwide from Alfa under any theory. This is true regardless of the eventual disposition of the action against Hall. We agree with Alfa's argument that to hold otherwise would essentially "render meaningless the decision of the Court in the first appeal." Reply Brief of Appellant Alfa Mutual Insurance Company, at 5. The summary judgment is, therefore, reversed as to Alfa, and a judgment is rendered in favor of Alfa.
1940678REVERSED AND JUDGMENT RENDERED.
1940756REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, KENNEDY, and BUTTS, JJ., concur.
[1] Section 27-23-2 provides:
"Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury, or death or for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment." | November 1, 1996 |
fa7e94b5-5c58-40bb-b7cf-818f5b110910 | Cason v. State | 515 So. 2d 719 | N/A | Alabama | Alabama Supreme Court | 515 So. 2d 719 (1987)
Ex parte State of Alabama
(Re: Austin CASON
v.
STATE)
85-1289.
Supreme Court of Alabama.
January 16, 1987.
Rehearing Denied March 27, 1987.
*720 Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for petitioner.
Arthur Parker, Birmingham, for respondent.
BEATTY, Justice.
This Court granted certiorari to consider whether the Court of Criminal Appeals, 515 So. 2d 718 (1986), erred in holding that the defendant was entitled to the following jury instruction:
The Court of Criminal Appeals found that the refusal to give this charge was error, citing Kennedy v. State, 291 Ala. 62, 277 So. 2d 878 (1973), and Ashlock v. State, 367 So. 2d 560 (Ala.Crim.App.), cert. denied, 367 So. 2d 562 (Ala.1979).
In Ashlock, the charge in question approved by the Court of Criminal Appeals was as follows:
367 So. 2d at 560. (Emphasis added.)
291 Ala. at 65, 277 So. 2d at 880. (Emphasis added.)
The use of the word "may" in each of these charges tends to allow the jury the ultimate decision on the credibility of a witness. Nevertheless, the instant charge may require the jury to consider the testimony of that witness as "impeached" once the felony conviction has been established, and thus the jury might believe that it should disregard his testimony completely. That conclusion, apparently, was the subject of the trial court's concern over the propriety of the charge.
In neither Ashlock nor Kennedy, on the other hand, did the language of the charge establish any conclusion for the jury on the question of the witness's credibility.
The credibility of a witness is a question for the jury. Waddle v. State, 473 So. 2d 580 (Ala.Crim.App.1985); Shelton v. State, 384 So. 2d 869 (Ala.Crim.App.), cert. denied, 384 So. 2d 871 (Ala.1980). It is true that the evidence of a conviction for a crime involving moral turpitude may be considered as affecting credibility, Code of 1975, § 12-21-162; however, that evidence, and the other evidence, if any, must convince the jury that a witness previously convicted of such a crime is unworthy of belief in order to enable the jury to disregard that witness's evidence altogether.
*721 Indeed, in Murphy v. State, 474 So. 2d 771, 774 (Ala.Crim.App.1985), the following charge was approved:
We find that the requested charge was incorrect, and so the trial court did not err in refusing to give it. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court for an order consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
All the Justices concur. | January 16, 1987 |
29e061f7-a70f-4d6a-90d2-017d01cb209a | Ex Parte Willingham | 695 So. 2d 148 | 1951503 | Alabama | Alabama Supreme Court | 695 So. 2d 148 (1996)
Ex parte Taft WILLINGHAM.
(In re Taft Willingham v. State of Alabama).
1951503.
Supreme Court of Alabama.
November 8, 1996.
Rehearing Denied January 17, 1997.
*149 Dan F. Nelson of Lentz, Nelson, Whitmire & House, Decatur, for Petitioner.
Jeff Sessions, Atty. Gen., and Hense R. Ellis II, Asst. Atty. Gen., for Respondent.
HOUSTON, Justice.
Taft Willingham was convicted of kidnapping in the second degree, in the Circuit Court of Morgan County, and was sentenced to 20 years in the state penitentiary. Willingham appealed, maintaining, among other things, that the State had violated his constitutional rights by withholding exculpatory information required to be disclosed by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and, that as a result, he was entitled to a new trial. The Court of Criminal Appeals affirmed, holding that Willingham had failed to establish that the new evidence was anything more than impeachment evidence and that the outcome of his trial would have been different had the jury been exposed to this evidence. The Court of Criminal Appeals wrote:
Willingham v. State, 695 So. 2d 144, 147-49 (Ala.Crim.App.1996). (Citations omitted.) Willingham petitioned for certiorari review, which we granted to review the Brady issue.
The crux of Willingham's argument concerns information held by Officer Fred Young of the Courtland Police Department. The Court of Criminal Appeals set out Willingham's argument in terms of a contention that the state withheld "Young's testimony." The record indicates that as of the time of the trial, Young had given no testimony. We understand Willingham to be saying that the prosecution withheld information possessed by Young, information as to which he could have testified at Willingham's trial.
Young was assistant chief of the Courtland Police Department. The first time he was interviewed about the alleged kidnapping was by Willingham's attorney in October 1995 (approximately five months after the jury had found Willingham guilty of kidnapping in the second degree and two months after the trial court had sentenced Willingham to life imprisonment). Before that time, no one from the Morgan County district attorney's office, the City of Decatur Police Department, or Willingham's defense team had talked to Young about the incident. Young did not know about Willingham's trial, because he had been out of town and had not returned to Courtland until the trial was over. Upon his return, the Courtland city clerk informed Young that the prosecutor had left a message requesting that Young return his telephone call.
On the evening of the alleged kidnapping, a Lawrence County radio dispatcher informed Young that a girl had been kidnapped and dispatched Young to Willingham's residence. When he arrived at Willingham's residence, he knocked on the door and Willingham answered the door. Young asked Willingham if a girl was there, and Willingham responded, "Yes." Young then asked Willingham to tell the girl to come to the door. Willingham yelled for the girl to come out, but she did not. Young then walked into *151 the house and yelled for her; she stuck her head out from behind a bedroom door. Young told the girl that she had to go with him. He spoke with the girl in his patrol car and asked her if she had been kidnapped. She told him "No." He asked her if she had been raped, and she told him "No." He asked her if she had been forced to go to Willingham's house, and she said "No." Young recalled advising the Lawrence County dispatcher that he would not need backup, because the girl had told him she had not been kidnapped, raped, or forced to go to Willingham's house.
According to Young, when the girl came out of Willingham's bedroom, she was fully dressed, her clothes were straight, she was not crying, she was not upset, and she did not appear to be frightened. He remembered telling Officer Alex Taylor of the North Courtland Police Department, over the radio, that the girl had told him she had not been raped, kidnapped, or forced to go to Courtland with Willingham.
Young told the girl that she would have to go with him to meet the Decatur police officers, and she began crying and asked, "Do I have to go?" Young drove the girl to where the Decatur police officers were and left her with them. Young stated that he had seen many rape victims during his 25 years as a police officer and that, in his opinion, the girl was not afraid.
The jury did not hear what Young had seen and heard, because he did not testify at trial, nor was the jury advised that the girl had previously denied being kidnapped or raped and that she had changed her story at trial. Rather, that evidence was first discovered by Willingham's new appellate attorney after the trial.
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1197. See, also, Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).
Kyles v. Whitley, 514 U.S. at ___, 115 S. Ct. at 1566.
The same standard of materiality and the same due process requirement apply *152 whether the evidence would have been useful for exculpation or for impeachment. "When the `reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the] general rule." Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1971) (quoting Napue v. Illinois, 360 U.S. 264, 266, 79 S. Ct. 1173, 1175, 3 L. Ed. 2d 1217 (1959)). In short, due process requires the prosecution to disclose material evidence, upon request by the defense, when the evidence would tend to exculpate the accused or to impeach the veracity of a critical state's witness. It is immaterial whether the prosecutor personally knew of the exculpatory evidence, because the knowledge of investigating officers is imputed to the prosecution.
There is no proof in this case that the prosecutor personally knew of the alleged victim's statement to Young. There is proof, however, that the prosecutor knew of Young's involvement in the investigation, because his name appeared as a witness on the indictment against Willingham, he assisted in the investigation that led to Willingham's arrest, and the State attempted to contact him during the week of trial. Clearly, Young, as assistant chief of police of the Courtland Police Department, was very much a part of the prosecution team, and his knowledge was imputed to the prosecution. Had Young testified, his testimony would have contained exculpatory and impeachment information that would have been useful to the defense. Young's testimony would have been favorable to Willingham and would have been relevant and material to the key issue at trial. The alleged victim's out-of-court statement to Youngthat Willingham had not kidnapped or raped herwould have added weight to Willingham's claim that he was innocent of the offense charged and would have raised a reasonable doubt about his guilt. The State suppressed evidence of Young's knowledge. At the very least, the State should have given the impeaching information to Willingham. There is certainly a reasonable probability that had Young testified the results of the trial would have been different.
Accordingly, confidence in the outcome of the trial has been undermined. Therefore, we hold that Willingham was denied due process. That denial requires a reversal of his conviction and a new trial.
The judgment of the Court of Criminal Appeals is reversed and the case is remanded for that court to order further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, KENNEDY, COOK, and BUTTS, JJ. | November 8, 1996 |
36e5f8eb-ec10-480d-8079-f43550b1b663 | Johnson v. Anderson Ford, Inc. | 686 So. 2d 224 | 1951476 | Alabama | Alabama Supreme Court | 686 So. 2d 224 (1996)
Paul N. JOHNSON
v.
ANDERSON FORD, INC., and Fred Jones Manufacturing Company.
1951476.
Supreme Court of Alabama.
December 6, 1996.
*225 A. Mark Ritter, Florence, for Appellant.
Michael J. Bernauer of Yates, Mitchell, Bernauer, Winborn & Morton, Florence, for Anderson Ford, Inc.
Patrick H. Graves, Jr., of Bradley, Arant, Rose & White, Huntsville, for Fred Jones Manufacturing Company.
HOUSTON, Justice.
The plaintiff, Paul N. Johnson, appeals from a summary judgment in favor of the defendants, Anderson Ford, Inc. ("Anderson"), and Fred Jones Manufacturing Company ("Jones"), in this action seeking to recover compensatory damages based on allegations of breach of implied and express warranties, negligence, and innocent misrepresentation. We affirm in part, reverse in part, and remand.
Johnson purchased from Anderson a new Ford F-250 diesel truck for personal and business use. The truck's engine later failed (as a result of a damaged piston), after the manufacturer's warranty had expired. Because the truck had been driven less than 100,000 miles when its engine failed, Johnson approached Gerald Morrison, Anderson's service manager, to see what assistance he could possibly get from the manufacturer. A representative of Ford Motor Company, the manufacturer, met with Johnson and Morrison and offered to sell Johnson a rebuilt diesel engine for $500 if Johnson would install it himself and agree to buy Ford products in the future. Johnson agreed.[1] As an *226 accommodation to Johnson and Ford, Anderson agreed to act as the intermediary through which the rebuilt engine would be acquired. In that role, Anderson (acting for Johnson) paid Jones for the rebuilt diesel engine. Because Jones rebuilds only gasoline engines, it had purchased the diesel engine from Dealer's Manufacturing Company ("Dealer's Manufacturing"), a Ford authorized remanufacturer. Dealer's Manufacturing had shipped the engine to Jones wrapped in plastic. Jones, which did not remove the wrapping, but did expressly warrant the engine "to be free from defects in material and workmanship performed by the factory," shipped it to Anderson. Anderson, without disturbing the wrapping, turned the engine over to Johnson, who had it installed in his truck by several of his employees.
Shortly after installing the engine in his truck, Johnson began to notice a tapping or a knocking noise coming from the engine. Johnson took the truck to Anderson, where Morrison told him that the engine was under warranty and that he should just continue to drive the truck until the noise could be more accurately located. The noise persisted and worsened. Johnson eventually left the truck at Anderson while he went on vacation. An Anderson service technician, John Benson, took the truck on a 10-minute test drive in an attempt to locate the problem. The engine failed while it was in Anderson's possession. A subsequent inspection of the engine by Johnson and others, including representatives of Anderson and Jones, revealed that one of the engine's pistons (the number seven piston) and the cylinder housing it had cracked. Another of the engine's pistons (the number five piston) was also damaged. A dispute later arose as to what had caused this damage. Johnson took the position that a defective oil control ring installed by the manufacturer had fractured and that pieces of that ring had gradually worked their way onto the top of the number seven piston and there had caused the piston to crack. On the other hand, Jones and Dealer's Manufacturing, although agreeing that the damage had in fact been caused by pieces of a piston ring working their way onto the top of the piston, disagreed as to how those pieces of piston ring had come to be in the engine. According to Jones and Dealer's Manufacturing, Johnson's employees had failed to properly clean the engine's intake manifold (which had remained with the truck and was not a part of the rebuilt engine) before installing the rebuilt engine. They believed that fragments *227 from a piston ring destroyed during the failure of the original engine had become embedded in a layer of old oil coating the inside of the intake manifold and that those fragments had worked loose and into the cylinder housing the number seven piston. Although it accepted no responsibility for the damaged engine, Jones, at Ford's request, offered to replace the engine with another rebuilt engine at no cost to Johnson. However, after failing to agree on a monetary settlement that would satisfy Johnson, Johnson filed this action.
Count one of Johnson's complaint alleged breach of implied warranties under Ala.Code 1975, §§ 7-2-314 and 7-2-315, with respect to both Anderson and Jones. Count two alleged that Jones had breached an express warranty. Count three alleged negligence on Anderson's part in driving the truck before dismantling the engine to inspect the pistons. Count four alleged innocent misrepresentation ("that said rebuilt motor was free from defects and/or was reasonably fit for its [intended] use") against both Anderson and Jones. Anderson and Jones filed separate motions for summary judgment, each motion supported by Johnson's deposition and various affidavits. Johnson responded to those motions with affidavits of his own. Citing various reasons, the trial court held that there was no genuine issue of material fact as to any of Johnson's claims and entered a judgment for both Anderson and Jones.
A summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. The applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12. Thus, the trial court was obligated to view all of the evidentiary material offered by Anderson and Jones in support of their motions in the light most favorable to Johnson. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).
The trial court properly entered the summary judgment as to count one. Section 7-2-314 provides, in pertinent part, that "[u]nless excluded or modified ..., a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Section 7-2-315 provides:
The undisputed evidence indicates that neither Anderson nor Jones actually contracted with Johnson to sell him the rebuilt engine. Johnson's agreement was with Ford Motor Company. That agreement did call for Anderson to pay Jones for the engine, for Jones to ship the engine to Anderson, and then for Anderson to deliver the engine to Johnson. Johnson was to pay $500 to Anderson. However, as we understand the evidence, Anderson, as an accommodation to Ford and Johnson, was to act only as an intermediary through which Johnson could acquire the rebuilt engine from Ford.[2] Section *228 7-2-314 and § 7-2-315 both apply only to the "seller" of a product. In this case, Ford was the seller, not Anderson or Jones. See Wellcraft Marine v. Zarzour, 577 So. 2d 414 (Ala.1990); see, also, Rhodes v. General Motors Corp., 621 So. 2d 945 (Ala.1993). The privity of contract that arises out of the seller/buyer relationship was absent here. That absence, in cases of strictly economic harm (which is all Johnson alleged), is fatal to an implied warranty claim under either § 7-2-314 or § 7-2-315. Wellcraft Marine, supra; State Farm Fire & Casualty Co. v. J.B. Plastics, Inc., 505 So. 2d 1223 (Ala.1987).
We cannot agree, however, that Jones was entitled to a judgment as a matter of law on count two (breach of express warranty). Citing Barré v. Gulf Shores Turf Supply, Inc., 547 So. 2d 503 (Ala.1989), Jones contends that there was no contractual relationship (i.e., privity of contract) between it and Johnson and, therefore, that Johnson could not maintain an action on its express warranty. In the alternative, Jones contends that no reasonable person could infer that the rebuilt engine failed as a result of a defect in materials or workmanship.
As to Jones's first contention, we agree, as previously noted, that there was no seller/buyer relationship between Jones and Johnson. However, the express warranty on which Johnson based his claim was a manufacturer's warranty made by Jones directly to the ultimate purchaser, which was, in this case, Johnson. This distinguishes this case from Barré. In that case, the plaintiff, Barré, sought to maintain an action on an express extended warranty (covering repairs of a lawn mower) that had been given by the dealer to Thompson, who had originally purchased the mower and then had sold it to the plaintiff. This Court noted the general rules that a plaintiff must prove privity of contract in an action on an express warranty where only economic harm is involved and that the benefit of a warranty does not ordinarily run with a product on its resale so as to give the subsequent purchaser any right of action thereon as against the original seller. However, this Court stated:
547 So. 2d at 505. It is evident in the present case that Jones intended to extend the express warranty directly to the ultimate purchaserJohnson. There being privity of contract between Jones and Johnson, Johnson can maintain an action on the warranty.[3]
As to Jones's second contentionthat the summary judgment on the express warranty claim was proper on the ground that there was no evidence of a defect in the enginewe note that there is a sharp dispute in the evidence as to what exactly caused the piston to crack and the engine to fail. Jones presented compelling evidence, especially through the affidavit of Jim Garner, a master mechanic, indicating that the engine's failure could not have been caused by the migration of a fractured oil control ring up to the top of the piston. However, Johnson presented evidence of his own, specifically the affidavits of his employees, who testified that they had thoroughly cleaned the old intake manifold before installing the rebuilt engine, and the *229 affidavit of Lenice E. Holden,[4] which stated, in pertinent part, as follows:
Although we appreciate Jones's earnest attempt to "argue away" the evidence presented by Johnson, we cannot, based on this record and viewing the evidence in the light most favorable to Johnson, hold that no genuine issue of material fact exists as to what caused the engine to fail.
We also cannot agree that Anderson was entitled to a summary judgment on Johnson's negligence claim (count three). Johnson alleged in pertinent part as follows:
In support of its motion for summary judgment, Anderson submitted the affidavit of John Benson, an Anderson Ford service technician:
In response, Johnson submitted the affidavit of Edward Posey:
Johnson's negligence claim, as we understand it, is based on allegations that the *230 engine began to fail shortly after it was installed (i.e., Johnson contends that shortly after the engine was installed the allegedly defective oil control ring had broken and worked its way up onto the top of the piston, causing a tapping or knocking noise in the engine when the engine was running), but that the piston and the cylinder did not actually crack until the test drive by Benson. Thus, Johnson's claim is, apparently, that had Benson immediately dismantled the engine and inspected the pistons, without test-driving the truck, only minor repairs would have been necessary. Again, we must defer on this issue to the jury, which would have the duty to sort out the testimony of those persons having superior knowledge as to the mechanics of truck engines. We cannot hold, based on the evidence before us, that there is no genuine issue of material fact as to whether Anderson was negligent and, if it was negligent, whether that negligence was a proximate cause of the engine's failure.
As to count four (innocent misrepresentation), we hold that the summary judgment was proper. Johnson alleged that Anderson and Jones had misrepresented that the rebuilt engine was "free from defects and/or was reasonably fit for its [intended] use." Johnson argues as follows on page 14 of his original brief:
In his deposition at page 152 of the record (the only part of the record cited as evidence of a misrepresentation), Johnson testified that Morrison told him that there was a 12,000-mile warranty on the engine. The undisputed evidence indicates that this was a true statement. There was, therefore, no genuine issue of material fact with respect to the misrepresentation claim against Anderson. Johnson does not argue on appeal that the summary judgment was improper with respect to his misrepresentation claim against Jones. That issue has, therefore, been waived. Spradlin v. Spradlin, 601 So. 2d 76 (Ala.1992).
For the foregoing reasons, the summary judgment, insofar as it pertains to count one (implied warranties) and count four (innocent misrepresentation), is affirmed. However, insofar as it pertains to count two (the express warranty claim against Jones) and count three (the negligence claim against Anderson), the summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, and COOK, JJ., concur.
ALMON, J., concurs in the result.
BUTTS, J., concurs in part and dissents in part.
BUTTS, Justice (concurring in part and dissenting in part).
I concur in the affirmance of the summary judgment as to count four of Johnson's complaint and the reversal as to counts two and three.
I respectfully dissent from the affirmance of the summary judgment as to count one of Johnson's complaint, alleging the breach of an implied warranty by Anderson Ford, Inc. ("Anderson"), and Fred Jones Manufacturing Company ("Jones"). The majority holds that, as a matter of law, neither Anderson or Jones was the "seller" of the rebuilt engine at issue in this case. However, I believe Johnson presented substantial evidence creating a genuine issue of material fact as to whether Anderson or Jones was the seller of the engine received by Johnson; I would *231 reverse the summary judgment as to count one.
[1] Johnson testified in his deposition as follows:
"Q. What kind of arrangement did you work out so you could get this engine?
"A. I went to Gerald with those parts, you know, and then
"Q. And who [is Gerald]?
"A. Gerald Morrison.
"Q. Who did he work for?
"A. Anderson Ford. And he told me he would call the rep [representative] or whatever, and so he called him and like the next day or two he came
"Q. Do you know what rep they were talking about?
"A. Gerald would know. It's some rep that maybeI don't know if he was over engines or whatever. Anyway, one of Gerald's bosses, I guess you could say, over the area or something.
"Q. Now, Anderson Ford was a Ford Motor dealership at that time; wasn't it?
"A. Right.
"Q. And the representative he was calling, did you understand it was a Ford representative?
"A. That's what I understood.
"Q. Were you there when he called him?
"A. Well, I was there. I met him in the next few days. I don't know if I was there when he called, but I met him in the next few days when he came in there. We met the next day or whenever he came through.
"Q. What was that guy's name?
"A. I don't remember.
". . . .
"Q. Did he identify himself to you?
"A. Yeah.
"Q. And did he identify himself as a Ford Motor Company representative?
"A. Right.
"Q. And what was discussed with him at that time?
"A. I told him what happened. Gerald had already told him what happened, but I told him again what happened, and he said, you know, he hated that it happened that, you know, those thingsit shouldn't have happened that quick, you know, for something to blow up it should've been after 200,000, maybe, or something like that. It should've been a long time later. But he said that they had had some problems with some of them; defective or blowing up, you know, or had some problem. And he said, you know, he would try to help me, and they said they wouldand after talking about it a while he said he wouldthey would get me an engine. They would get me a new engine or a rebuilt engine. I can't remember which one he said. It didn't matter to me as long as it was a good engine, you knowgive me an engine and if I'd pay him $1,000 and if I'd put it in where they wouldn't have the labor in it, you know, and have their mechanics
"Q. Who said that to you now?
"A. The Ford rep or who I thought was
"Q. This wasn't Gerald talking now?
"A. No.
"Q. Go ahead.
"A. Gerald was there, you know, when this was going on. I said, `Well, you know, how about $500?' He said, `If you'll buy a Ford againif you'll buy a Ford again we will do it for $500.' But I had to put it in you know. That cost themmaybe it cost the dealership $1,000 to put it in or whatever. But they wanted to avoid the labor on it, you know, putting it in. I said, `Well, okay. I've got some men that's, you know, mechanics that can do it.' And it took us like two days or something to put it in, you know.
"Q. So if I understand the agreement that you entered into with the Ford representative was that they would provide you with another rebuilt diesel engine for $500?
"A. Yeah.
". . . .
"Q. In your opinion, did Ford have an obligation to sell you a rebuilt engine for $500 at that time?
"A. No. They wasn't obligated to me, because I didn't have no warranty with them.
"Q. Didn't they tell you that it was for customer relations only that they were doing that?
"A. Yeah, and if I would, you know, buy another Ford and be a good customer, which I wasyou know, my intentions were.
". . . .
"Q. Mr. Johnson, when you initially bought your 1990 truck, you understood that the warranty on that vehicle came from Ford Motor Company?
"A. Right.
"Q. But you wentlike anybody else that owns a truck, you would go to the local dealership when you had a warranty problem?
"A. Right.
"Q. But you understood that the warranty on that vehicle, even though it had expired, that warranty came directly to you and was backed up by Ford Motor Company; correct?
"A. Right.
"Q. And there was an accommodation agreed to that they would replace the engine in your truck at some point in time?
"A. Right.
"Q. Now, was Ford directly involved in that?
"A. Yeah.
"Q. I think you've testified that the Ford rep was there?
"A. Right. FordI thought FordWhen Anderson FordFord was doing it, you know, for Anderson Ford to keep their rep good and everything.
"Q. And I think at some point earlier in your testimony you said this guy was like Gerald's boss?
"A. Well, not his boss. I mean it wasn't his boss.... But he was a representative from Ford that waswell, he could make deals with Ford that Gerald couldn't make. He could override something Gerald said or something.
"Q. Was that your understanding of what this representative's role was to get in here and try to get this thing settled with you?
"A. Right.
"Q. And you understood that guy to be working directly for Ford Motor Company?
"A. Right.
"Q. And did Gerald have to go through him to do anything with regard to making an accommodation for you, since that vehicle was already out of the Ford warranty?
"A. Right. Right."
[2] Johnson, arguing that there was a buyer-seller relationship between himself and Jones, concedes this in his reply brief:
"Fred Jones owned the engine, Anderson Ford claims not to have any ownership interest in the engine, Johnson next owns the engine. Therefore, as between Jones and Johnson a [successive] relationship to the same right of property exists. True, if Anderson purchased the engine from Jones and then sold it to Johnson, there would be an intervening relationship to the same right of property and Johnson would not have privity of contract with Jones. However, the overwhelming evidence as presented in Johnson's original filing, Anderson's brief, Anderson's answer (C.R. 22 & 23), and even Jones's brief is that no such intervening ownership existed. '10. Anderson was only acting as an intermediary in these transactions as an accommodation to the plaintiff....' Anderson's answer (C.R.22). `Sales, nominally to certain company but in fact to its customers, must be regarded as sales to its customers.' Barber-Greene Co. v. Gould, [215 Ala. 73,] 109 So. 364 (1926) [quoting West's headnote 5]. Therefore, privity exists between Fred Jones and Johnson, and Johnson is entitled to a jury trial on this issue."
[3] We note that under Jones's interpretation of Barré the intervention of a dealer in the sale of any product would render unenforceable an express warranty extended by the manufacturer to the ultimate purchaser/consumer.
[4] Holden had 35 years' experience as a general mechanic; 30 years' experience in rebuilding engines; and 21 years' experience in running his own shop. | December 6, 1996 |
ae62cf4e-9a35-418d-8809-a0a261b6e400 | Ex Parte Heilig-Meyers Furniture Co. | 684 So. 2d 1292 | 1951150 | Alabama | Alabama Supreme Court | 684 So. 2d 1292 (1996)
Ex parte HEILIG-MEYERS FURNITURE COMPANY, INC.
(In re Robert Burlee SIMPSON, an incapacitated adult who brings this action By and Through John C. HARRIS, Jr., as Guardian of the Estate of Robert Burlee Simpson v. HEILIG-MEYERS FURNITURE COMPANY, INC., a corporation, et al.).
1951150.
Supreme Court of Alabama.
October 25, 1996.
*1293 Michelle A. Meurer of Ashe, Tanner, Moore & Wright, P.C., Tuscumbia, for Petitioner.
Arlene V. Robbins, Sheffield, for Respondent.
PER CURIAM.
Heilig-Meyers Furniture Company, Inc. ("Heilig-Meyers"), petitions for a writ of mandamus directing the trial court to prohibit certain discovery. The petition is granted in part and denied in part.
Robert Burlee Simpson sued Heilig-Meyers, alleging that he had been injured when he tripped and fell over a piece of furniture that protruded into the aisle of a Heilig-Meyers store in Florence, Alabama. Simpson alleged that Heilig-Meyers had negligently placed furniture on its showroom floor in its Florence store. Simpson served on Heilig-Meyers interrogatories and a request for production of documents, and Heilig-Meyers responded to the request for production and responded to all of the interrogatories, except number 10, which read:
Simpson included interrogatory number 10 in an attempt to determine whether he had any basis for amending his complaint to include a wantonness claim. Heilig-Meyers objected to the interrogatory to the extent that it sought information regarding complaints or reports of falls at stores other than the Florence store where Simpson was injured, arguing that the information requested was irrelevant, immaterial, and not likely to lead to the discovery of admissible evidence. The trial court, without a hearing, overruled Heilig-Meyers's objection and ordered it to respond within five days. Heilig-Meyers filed a "motion for reconsideration," arguing that it had over 700 stores in the United States and Puerto Rico; that it had no particular person, file, database, or document that could identify similar incidents in its stores; and that the furniture layouts in each of its stores could, from time to time, be different. Heilig-Meyers maintained not only that the information requested was irrelevant, immaterial, and not likely to lead to the discovery of admissible evidence, but also that it would be unduly burdensome to compile. The trial court denied Heilig-Meyers's motion for reconsideration. Thereafter, Heilig-Meyers sought an order to protect it from being required to produce information with respect to any of its stores other than the Florence store. In the alternative, Heilig-Meyers sought an order either requiring Simpson to depose each store manager from whom he wanted information and to do so in the county where the manager lives or granting Heilig-Meyers a reasonable time (more than five days) in which to compile the requested information, as well as reimbursement for expenses incurred in doing so. The trial court *1294 denied that motion. Heilig-Meyers filed this petition; we ordered an answer and briefs and granted a stay pending disposition of this discovery dispute.
The writ of mandamus is an extraordinary remedy that will not be issued unless the movant has a clear, undisputable right to the relief sought. A petition for the writ of mandamus is the proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders, so as to prevent an abuse of the discovery process by either party. The question on review is whether, under all of the facts before the trial court, it abused its discretion. Ex parte Mobile Fixture & Equipment Co., 630 So. 2d 358 (Ala.1993).
Rule 26, Ala.R.Civ.P., provides, in pertinent part, as follows:
This rule is construed broadly to allow a party to obtain relevant information needed in the preparation of the case. Ex parte Clarke, 582 So. 2d 1064 (Ala.1991). The Alabama Rules of Civil Procedure vest broad discretion in the trial court to control the discovery process and to prevent its abuse. Hunt v. Windom, 604 So. 2d 395 (Ala.1992).
No doubt, the trial court correctly viewed Simpson's discovery request as seeking relevant information. It is significant that Simpson fashioned interrogatory number 10 so as to limit the inquiry to other incidents over a three-year period involving falls over objects that protruded into the aisles or passageways of Heilig-Meyers stores. Furthermore, contrary to Heilig-Meyers's contention, the information sought would be important; it could provide an evidentiary basis for Simpson to amend his complaint so as to state a wantonness claim. If there have been other incidents similar to Simpson's, and if Heilig-Meyers, through its store managers or other store personnel, has been notified of those incidents, then a jury might conclude that Heilig-Meyers's knowledge of those incidents and its conduct with respect thereto rose to the level of wantonness.[1]
However, although the trial court has broad discretion to control the discovery process, that discretion is not unlimited. Ex parte Thomas, 628 So. 2d 483 (Ala.1993). Rule 26 specifically provides a means for relief from discovery requests that are unduly burdensome. The facts before us show that Heilig-Meyers has over 700 stores in the United States and Puerto Rico and that there is no particular person, file, database, or document that could provide the information sought by Simpson. According to Heilig-Meyers, it would have to contact and inquire of over 700 store managers as to whether similar incidents had occurred at their stores between July 1, 1992, and July 1, 1995, and, if so, it would have to locate any complaints or reports that might have been *1295 prepared in connection with those incidents and explain how the incidents were handled. We agree with Heilig-Meyers that such an undertaking would be unduly burdensome, especially if Heilig-Meyers were required to complete it within five days. We do not agree, however, that Heilig-Meyers is entitled to the specific relief it has requested (i.e., an order directing that it not be required to produce any information concerning similar incidents at stores other than the Florence store or directing that Simpson be required to depose each store manager in the county of the manager's residence and that Simpson be required to reimburse it for compiling the required information). We believe, instead, that Heilig-Meyers should be able to satisfactorily respond to interrogatory number 10 by attaching copies of any complaints or reports made or forwarded to Heilig-Meyers at its home office between July 1, 1992, and July 1, 1995, concerning any incidents similar to the one made the basis of Simpson's complaint, that occurred at any of Heilig-Meyers's stores. Heilig-Meyers should also explain how any such complaint or report was handled. This should eliminate the burdensome nature of the request and help to ensure that any information provided is relevant (i.e., that it tends to establish knowledge on the part of Heilig-Meyers that its merchandise was being displayed in an unsafe manner).
PETITION GRANTED IN PART AND DENIED IN PART.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur.
BUTTS, J., dissents.
[1] Simpson wisely sought to establish a basis for alleging wantonness before amending his complaint to state such a claim. See Rule 11, Ala. R.Civ.P., and Ala.Code 1975, § 12-19-270 et seq. (the Alabama Litigation Accountability Act). | October 25, 1996 |
0303933c-6ff1-4c46-b915-130873c3c95d | Ex Parte Green Tree Financial Corp. | 684 So. 2d 1302 | 1951211 | Alabama | Alabama Supreme Court | 684 So. 2d 1302 (1996)
Ex parte GREEN TREE FINANCIAL CORPORATION.
(Re Elbert J. KILPATRICK and Barbara J. Kilpatrick v. GREEN TREE FINANCIAL CORPORATION and American Bankers Insurance Company of Florida).
1951211.
Supreme Court of Alabama.
November 1, 1996.
*1303 Robert A. Huffaker and William H. Webster of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Petitioner.
Joe R. Whatley, Jr., Frederick T. Kuykendall III, Russell Jackson Drake, Sam Heldman and Hilary E. Ball-Walker of Cooper, Mitch, Crawford, Kuykendall & Whatley, L.L.C., Birmingham; E. Mark Ezell, John Sharbrough, and Sarah Hicks Stewart of Ezell & Sharbrough, L.L.C., Butler; and Richard A. Freese and T. Roe Frazer II of Langston, Frazer, Sweet & Freese, P.A., Birmingham, for Respondents.
SHORES, Justice.
Green Tree Financial Corporation petitions for a writ of mandamus directing the trial court to set aside or modify its order certifying the counterclaim filed by the plaintiffs, Elbert J. Kilpatrick and Barbara J. Kilpatrick, as a class action and designating a class. We grant the petition.
On January 4, 1993, Green Tree filed a detinue complaint in the Circuit Court of Marengo County, against Elbert and Barbara Kilpatrick, claiming that the Kilpatricks *1304 had defaulted on their mobile home installment contract with Green Tree. On February 12, 1993, the Kilpatricks filed a counterclaim on behalf of themselves and all those similarly situated, naming American Bankers Insurance Company of Florida as a counterclaim defendant along with Green Tree.
The original counterclaim sought certification of a class composed of Alabama residents who had loan agreements with Green Tree and who had had physical damage insurance "force placed" on the collateral. The Kilpatricks amended their counterclaim to seek damages against Green Tree and American Bankers for breach of contract (alleging that those defendants had charged and collected excessive premiums for physical damage insurance); breach of an implied contract to exercise reasonable skill, care, and diligence in providing insurance; breach of a duty of "good faith and loyalty" (regarding the alleged placement of useless or unauthorized insurance); fraud; civil conspiracy; negligence; and wantonness.
The original motion for class certification was amended by a motion filed September 22, 1995, which sought certification of a class consisting of the following:
Extensive briefing and argument ensued, which Green Tree characterizes as being wholly insufficient to show that common issues of law and fact exist among the members of the purported class. More specifically, Green Tree contends that the Kilpatricks, to support their motion for class certification, introduced scant extracts from the deposition of Mrs. Kilpatrick and, Green Tree says, in them she failed to allege facts pertinent to the issue of class certification. She additionally claimed in her deposition to be financially unable to fund class notices. The only other evidence offered by the Kilpatricks in support of the motion consisted of Green Tree's responses to the Kilpatricks' requests for admissions. Green Tree's responses, however, were primarily denials and did not establish facts required for class certification.
On November 15, 1995, the trial court conducted a class certification hearing. The Kilpatricks offered no additional evidence at the hearing. The parties were permitted, however, to make supplemental submissions after the hearing. The Kilpatricks thereafter sent the trial judge a letter, enclosing with it nonauthenticated copies of a Green Tree annual statement and several pages from a NADA price guide on mobile homes in order to show the extent of Green Tree's involvement in mobile home sales and property insurance.
On January 31, 1996, after the evidentiary hearing on the motion for class certification and after reviewing the pleadings, interrogatories, and depositions, the trial court certified two nationwide subclasses as follows:
Although the order designates two subclasses and states that the requirements of Rule 23(a), Ala.R.Civ.P., regarding numerosity, commonality, typicality, and adequate representation had been met, the order does not clearly specify under which of the subsections of Rule 23(b) the class has been certified. As to that issue, the order states simply:
Green Tree contends that the trial court abused its discretion by certifying a nationwide class. Green Tree petitions for a writ of mandamus directing the trial judge (a) to vacate his order certifying two subclasses of plaintiffs or (b) in the alternative, to more narrowly define the class so as to limit it to Alabama residents and to clarify whether the class is of the type described in Rule 23(b)(1), the type described in (2), or the type described in (3).
An order certifying an action as a class action is subject to review by way of a petition for a writ of mandamus. Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469 (Ala.1991); Ex parte Gold Kist, Inc., 646 So. 2d 1339 (Ala.1994). A writ of mandamus is drastic and extraordinary in nature, to be issued only where there is 1) a clear legal right in the petitioner to the relief sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) an absence of another adequate remedy; and 4) jurisdiction in the court from which relief is sought. Ex parte State ex rel. McKinney, 575 So. 2d 1024 (Ala. 1990); Gold Kist. In other words, "mandamus is not an appellate remedy for all seasons." Gold Kist, 646 So. 2d at 1341; see Ex parte Slade, 382 So. 2d 1127 (Ala.1980).
This Court has previously considered similar questions of whether a writ of mandamus should issue to decertify or modify a class. In 1991, this Court issued a writ of mandamus in favor of Blue Cross and Blue Shield of Alabama directing that the trial court set aside its order designating a class and certifying the action as a class action. Blue Cross, supra. This Court held that the trial court had abused its discretion by certifying a class action without any party's having moved for class certification and without sufficient evidence to satisfy the prerequisites for designation and certification set forth in Rule 23(a) and (b) respectively. 582 So. 2d at 476-77. Justice Houston stated for the Court:
582 So. 2d at 476-77. The uncontested evidence in Blue Cross established that the class representatives lacked an injury typical of the class and therefore lacked standing to assert claims on behalf of the class. Id. at 474-75. The evidence further failed to establish that the plaintiffs would "fairly and adequately protect the interests of the class." Id. at 473. Consequently, it was insufficient to certify the class.
In 1994, this Court issued a writ of mandamus in Gold Kist, supra, directing that the trial court set aside its class designation and limit the class to certain Alabama residents. The Court held that the trial court had not abused its discretion by certifying the action as a class action, but that the class designation was "overly broad" and needed adjustment. *1306 646 So. 2d at 1343. The Court based its holding upon the transcript of the class hearing, at which one of the attorneys for the plaintiffs conceded that "he had no evidence tending to show that any Alabama resident had been overcharged for feed purchased from the Jasper and Guntersville poultry feed mills." 646 So. 2d at 1342. "Therefore," the Court held, "there was no evidentiary basis for designating the class so broadly as to include every Alabama resident who had, before June 1, 1993, purchased bulk feed from `a Gold Kist plant in Alabama.'" 646 So. 2d at 1342. The Court directed that
Id. at 1343. In Gold Kist, the defendants petitioned for a writ of mandamus after a class hearing and after the court had certified the action as a class action.
In February 1996, this Court, in Ex parte Central Bank, 675 So. 2d 403 (Ala.1996), granted in part a petition for a writ of mandamus, holding that the petition could not be used to review the trial court's ruling on the merits of the class representative's underlying claim, but that the plaintiff class was overly broad and had to be narrowed. Unlike the petitioner in Blue Cross, Central Bank argued in its case that the representative lacked standing to represent the class because "she has failed to `demonstrate that there was [a] material breach of the agreement by Central Bank.'" Id. at 406. The Court denied the petition in part, based upon this argument, because "`mandamus cannot be used as a substitute for appeal'" and, "[t]hus, a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment." Id. at 406 (citations omitted).
While expressing a desire "not to be understood as invading the role of the trial court in matters involving its discretion," id. at 407, this Court nevertheless directed that the trial court narrow the class to exclude customers whose contracts did not suffer the deficiency alleged to form the basis of the underlying action. Id. at 407. The trial court was directed "to vacate its class designation to the extent that it includes such customers as Central Bank shall demonstrate, through the production of its relevant records, received [appropriate] CD disclosure statements." Id. at 407. Central Bank filed its petition for a writ of mandamus after the trial court had approved both the class and class notice requirements and had denied Central Bank's motion for an evidentiary hearing on the issue of the class certification.
In May 1996, this Court, in Ex parte Exide Corp., 678 So. 2d 773 (Ala.1996), issued a writ of mandamus in favor of Exide Corporation, directing the trial court to decertify the plaintiff class because "the trial court [had] abused its discretion in certifying the class." 678 So. 2d at 777. The Court's concern focused on its inability to find in the record any evidence that any named plaintiff had purchased a particular battery with a warranty that provided the basis of the underlying claim. 678 So. 2d at 777. Looking to Ex parte Hayes, 579 So. 2d 1343, 1345 (Ala.1991), the Court based its holding in part upon the fact that the named plaintiffs seeking to represent the class had failed to establish the requisite case or controversy required to seek relief on behalf of the class. 678 So. 2d at 777. Additionally, the named plaintiffs had not carried their burden of proving that their claims were typical of the claims of the class they sought to represent. 678 So. 2d at 777. The mandamus petition came after a hearing on class certification and after the trial court had orally certified the action as a class action.
In June 1996, this Court decided Ex parte Masonite Corp., 681 So. 2d 1068 (Ala.1996). Masonite, by petitioning for a writ of mandamus and for permission to appeal, sought to have a class certification set aside, the circuit judge recused, and the plaintiffs' attorneys disqualified, all on the basis of what Masonite contended were improper contacts between *1307 the circuit judge and the plaintiffs' attorneys. This Court denied the petitions.
Masonite is distinguishable from this case for two reasons. First, the majority's opinion in Masonite and the substance of its analysis focused on the allegations of ex parte communications and not on class certification issues. Second, writing for the Court, Justice Almon stated correctly that "Judge Kendall's order is preliminary, and appellate courts do not review preliminary orders in class actions absent compelling reasons to do so." 681 So. 2d 1068 (emphasis added). Compelling reasons were absent in Masonite, but they are present in this case.
Masonite presented no compelling reasons, because the trial court had had sufficient evidence to certify the action as a class action. For example, the trial court initially granted conditional certification of a nationwide class; proceeded with seven months of class certification discovery; entertained an extensive evidentiary hearing on the class action issues, including post-hearing letter briefs regarding the issues raised during the hearing; and, finally, issued a thorough order of 12 fact-filled pages certifying the class under Rule 23(a) and clearly indicating the class designation under Rule 23(b)(3). The order extensively addressed each of the prerequisites for certification.
In contrast, the trial court in this case has entered an order based upon little or no evidentiary underpinnings. The order merely parrots the formulaic language of Rule 23(a). Moreover, respecting Rule 23(b), the trial court has apparently created both a mandatory class pursuant to Rule 23(b)(2) and an "opt-out" class pursuant to Rule 23(b)(3). Such differences in evidentiary foundation and clarity clearly distinguish this case from Masonite. Therefore, the Kilpatricks' contention that Masonite requires the denial of Green Tree's petition is without merit. Additionally, granting the petition in this case is consistent with Masonite. The same rationale applies in this case as in Masonite: that before a writ of mandamus will issue, compelling reasons must exist. In this case the insufficient evidentiary foundation and the ambiguity of the trial court's order supply the compelling reasons.
The case law review set out above persuades us that a writ of mandamus should issue to require the trial court to set aside the order certifying this action as a class action and designating a class. While the Kilpatricks argue that the posture of this case does not warrant the issuance of a writ of mandamus, the posture of this case is similar to that of Gold Kist and Exide because, as in those cases, the petition here was filed after a class certification hearing. Blue Cross and Central Bank further support our conclusion that the writ should issue in this case. The Court in those cases issued a writ even though the petitioners filed their petitions before the trial court had conducted any hearing whatever on class certification.
Because a hearing has been held in this case and class certification has been ordered, there is no other adequate remedy. Green Tree requested the trial court not to certify the class, but the trial court refused the request. Because this Court's jurisdiction is not at issue, the only remaining element required for a writ of mandamus to issue is the existence of a clear legal right in the petitioner to the order sought.
As set forth in Blue Cross and Gold Kist, the one against whom certification has been entered has a clear legal right to a writ directing that the class action certification be set aside if the party seeking class action certification failed to carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23in the event of such a failure, the trial court's certification of the action as a class action constitutes an abuse of discretion. See Blue Cross, 582 So.2d at 476-77; Gold Kist, 646 So. 2d at 1341-42.
The discussion now turns to the evidence, which, like the evidence in the other cases discussed above, shows that the trial court's certification of the action as a class action was premature and was based upon evidence insufficient to satisfy the requirements of Rule 23, Ala.R.Civ.P. Rule 23(a) establishes prerequisites for a class action:
An action may be maintained as a class action only if the prerequisites of Rule 23(a) are satisfied and any one of the three additional elements of Rule 23(b) exists. The elements of (b) are:
The prerequisites of Rule 23(a) must be satisfied before the court considers the additional criteria of Rule 23(b). Blue Cross, supra, 582 So. 2d 469; Rowan v. First Bank of Boaz, 476 So. 2d 44 (Ala.1985). The party seeking certification of an action as a class action bears the burden of proof as to each of those prerequisites. Rowan. The burden is one of presenting "sufficient evidence" to satisfy the requirements of Rule 23. Blue Cross, 582 So. 2d at 476; Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 706 (11th Cir.1995) (finding sufficient evidence to support the district court's determination that the numerosity requirement of Rule 23(a)(1), Fed.R.Civ.P., was met); McCree v. Sam's Club, 159 F.R.D. 572, 576 (M.D.Ala.1995) (holding that the plaintiffs had not offered sufficient evidence that their claims met the requirements of Rule 23(a)). Additionally, the trial court's order cannot be ambiguous with respect to which of the Rule 23(b) criteria is found to exist:
Committee comments on 1973 adoption of Ala.R.Civ.P. 23(c) (emphasis added).
The Kilpatricks had the burden of demonstrating by sufficient evidence that the four prerequisites of Rule 23(a), Ala.R.Civ.P., were met and that at least one of the prerequisites of Rule 23(b) was met. To satisfy this burden, the Kilpatricks offered the allegations in their amended counterclaim and amended motion for class action. They offered nine pages of Mrs. Kilpatrick's deposition testimony, in which she affirmed her interest in being a class representative but claimed not to have the financial resources to fund class notices. This testimony did not relate to any substantive class issues, such as typicality of claims, numerosity, or other criteria of Rule 23(a). The Kilpatricks offered Green Tree's responses to the Kilpatricks' *1309 requests for admissions. Those responses, however, were primarily denials of the things the Kilpatricks asked Green Tree to admit. There were no admissions of any facts relevant to the class certification issue.
The Kilpatricks presented no additional evidence at the class certification hearing conducted on November 15, 1995, other than a letter to the trial judge from their counsel (submitted after the hearing but before the issuance of the certification order), with which were enclosed nonauthenticated copies of a Green Tree annual statement and several pages from an NADA price guide on mobile homes. That evidence is insufficient to certify this action as a class action and designate a class. The trial court's order is also ambiguous with respect to which of the Rule 23(b) criteria the court found to exist. Consequently, we must conclude that the trial court abused its discretion; that abuse of discretion gives Green Tree a clear legal right to the order sought. Blue Cross, supra; Gold Kist, supra.
Although the trial court's certification of this action as a class action and designation of a nationwide class were premature, a class action may be certified and a class designated if the Kilpatricks present the trial court sufficient evidence to satisfy the requirements of Rule 23. The record before us does not permit us to determine to what degree, if any, a class action should be certified and a class designated. It does not contain evidence sufficient for us to determine whether a class of Alabama plaintiffs would be too narrow, or whether a class of nationwide plaintiffs would be too broad, or if a class action is maintainable in the first instance.
After carefully reviewing the petition, the record, and the briefs, we conclude that Green Tree has demonstrated a clear legal right to an order directing the trial court to set aside its order certifying this action as a class action and designating a nationwide class. While further evidence might support the certification of this action as a class action and might support the designation of a nationwide class, the evidence now in the record does not.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, and COOK, JJ., concur.
BUTTS, J., dissents. | November 1, 1996 |
726e2c6a-18e8-4544-b17a-98075008d7ff | Chunchula Energy Corp. v. Ciba-Geigy Corp. | 503 So. 2d 1211 | N/A | Alabama | Alabama Supreme Court | 503 So. 2d 1211 (1987)
CHUNCHULA ENERGY CORPORATION
v.
CIBA-GEIGY CORPORATION.
Ex parte CHUNCHULA ENERGY CORPORATION.
(In re CHUNCHULA ENERGY CORPORATION
v.
CIBA-GEIGY CORPORATION.
84-1226, 85-335 and 85-334.
Supreme Court of Alabama.
February 20, 1987.
*1212 Irvin Grodsky of Grodsky and Mitchell, Mobile, for appellant/petitioner.
Thomas H. Keene and F. Chadwick Morriss of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees/respondents.
ALMON, Justice.
Although the underlying suit involves contracts for supplying natural gas, these appeals and this petition for writ of mandamus *1213 concern only preliminary injunctions ordering a counterclaim defendant, Chunchula Energy Corporation, to deposit $904,000.00 in escrow with the circuit clerk pending resolution of the claims. There was evidence that Chunchula distributed dividends of $1,612,169.25 to its sole stockholders, Dr. and Mrs. Gerald L. Wallace, after this controversy arose, thereby disposing of nearly all of its assets except for disputed claims arising out of the contracts at issue in this suit. In addition to the question of the merits of the injunctions, the case presents numerous procedural questions relating to the issuance of the injunctions.
In 1976, Chunchula entered into a contract to purchase gas from Ciba-Geigy Corporation. Shortly thereafter, it entered into contracts with Conecuh-Monroe Counties Gas District, an Alabama corporation, and with Mobile Gas Service Corporation to sell gas to those two entities. From 1976 through March of 1985 Chunchula's sole source of income was the sale to Conecuh-Monroe and Mobile Gas of gas purchased from Ciba-Geigy. There was testimony that Chunchula earned more than $1 million per year during each of these years.
Due to disagreements over the pricing, source, and pressure of the gas supplied, Conecuh-Monroe filed a declaratory judgment action against Chunchula on February 28, 1984. Conecuh-Monroe requested a declaration that Chunchula had breached certain contract terms, and that those breaches justified Conecuh-Monroe's not paying for some or all of the gas supplied. Chunchula filed a third-party claim against Ciba-Geigy, alleging that if Conecuh-Monroe was entitled to relief against Chunchula, then Chunchula was entitled to commensurate relief against Ciba-Geigy. Chunchula also filed a counterclaim against Conecuh-Monroe, requesting payment of the disputed sums.
On June 13, 1984, Ciba-Geigy filed an answer to the third-party complaint and a counterclaim against Chunchula. There were further pleadings and amendments to pleadings, notably Ciba-Geigy's amended counterclaim of March 18, 1985, which included count five, requesting a preliminary injunction requiring "that all sums due to Chunchula ... from its customers ... be paid, when due, into the registry of this Honorable Court," to be paid to Ciba-Geigy or held until final determination of the various claims in the action.
On March 27, 1985, Ciba-Geigy filed a further amendment to its counterclaim, adding count six, also requesting a preliminary injunction. This count recited facts pertinent to the request for creation of an escrow fund, including specifics relative to the disbursements of funds by Chunchula to the Wallaces. One such disbursement, of $200,000.00, had been made on March 19, 1985, the day after Ciba-Geigy filed its first amended counterclaim.[1] Among other relief, count six requested that the court would
The amended counterclaim also requested the court to "[f]ix the reasonable amount of security to be posted as a bond by the surety for Ciba-Geigy Corporation pursuant to Rule 65[, A.R.Civ.P.]."
The court held a hearing on the requests for preliminary injunction on June 27, 1985. On August 9, 1985, the court entered an order finding that Ciba-Geigy was entitled to injunctive relief and ordering Chunchula *1214 to pay $904,000.00 into escrow with the circuit clerk, to be held until final resolution of the action.
On August 23, 1985, Chunchula filed a motion to stay the order pending appeal, a motion to dissolve the preliminary injunction or in the alternative to modify the injunction, a motion to alter or amend the injunctive order, and a notice of appeal to this Court.
On December 10, 1985, the trial court entered an "amended order on motion for preliminary injunction." The court stated that it was granting, in part, Chunchula's motion to alter or amend the injunctive order. Chunchula's motion had protested that it was impossible for Chunchula to comply with the injunction, that the order failed to set forth reasons for its issuance, and that the court erred in granting the order without requiring Ciba-Geigy to post a bond. These and other matters were set out in detail in the motions filed on August 23. The court's amended order stated in part:
On December 23, 1985, Chunchula filed both a notice of appeal from this order and a petition for writ of mandamus to the circuit judge. The petition for writ of mandamus presents the contentions that the circuit court had no jurisdiction to enter the order because of the prior appeal, that the order violated the Wallaces' right to due process, and that the finding that the Wallaces were the alter ego of Chunchula was not supported by any pleading or proof. The appeals and the petition for writ of mandamus were submitted in due course for this Court's consideration.
A party may appeal from "any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction," provided that the appeal is filed within 14 days of the entry of the order. Rule 4(a)(1), A.R.A.P. The filing of such a notice of appeal does not, however, deprive the trial court of the power to amend a preliminary injunction:
Rule 62(c), A.R.Civ.P.
Rule 65(c) provides in part that "No ... preliminary injunction shall issue except upon the giving of security by the applicant." Rule 65(d)(2) requires, among other things, that "Every order granting an injunction shall set forth the reasons for its issuance." These provisions are mandatory. Tapscott v. Fowler, 437 So. 2d 1280 (Ala.1983); Anders v. Fowler, 423 So. 2d 838 (Ala.1982); International Brotherhood of Electrical Workers v. Morton, 365 So. 2d 662 (Ala.1977). Therefore, the original *1216 injunction is defective and is due to be reversed.
The petition for writ of mandamus would have this Court set aside the order of December 10 on the ground that the trial court lost jurisdiction when the original notice of appeal was filed. Chunchula argues that the above-quoted provision of Rule 62 applies only to orders to preserve the status quo or amendments made appropriate by changes in circumstances. We find no authority for such an interpretation. Cf. 11 Wright & Miller, Federal Practice and Procedure: Civil, §§ 2904 and 2962 (1973), analyzing the federal courts' treatment of similar issues under the provisions of Rules 62(c) and 65, Federal Rules of Civil Procedure, which are substantially identical in pertinent respects to the corresponding rules in the Alabama Rules of Civil Procedure. Because the trial court retained continuing jurisdiction of the case, the writ of mandamus is due to be denied.[2]
It also follows that the failure to require a bond and the failure to give reasons for the issuance of the injunction were subject to correction by the trial court, and its December 10 order effectively removed any objection to the injunction on these grounds. Correspondingly, the issues raised in the original appeal which are pertinent to the amended injunction, but not raised again in the supplemental brief filed by Chunchula after the amended order was issued, will be deemed to be addressed to both orders of injunction. Normally, an appeal from a later interlocutory order will not raise questions as to any prior orders entered more than thirty days before the appeal. Jones v. Kendrick Realty, 287 Ala. 402, 252 So. 2d 61 (1971). Here, however, Chunchula filed notices of appeal from both orders.
We next address the question of whether the trial court erred in making the amended injunction applicable to the Wallaces as alter egos of Chunchula. The Wallaces were never named as defendants or served with notice. Ciba-Geigy argues that the Wallaces were certainly aware of the suit, but this cannot substitute for naming them as parties and raising the alter ego issue in a court which had personal jurisdiction over them in their individual capacities. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). In Zenith, the United States Supreme Court held that an injunction against a corporation which owned the stock of the defendant corporation was void as against the parent corporation, which was not a party to the action.
A judgment is void as to persons not named as parties to the complaint, served with notice, and given an opportunity to be heard. Zenith, supra; Nigg v. Smith, 415 So. 2d 1082 (Ala.1982); State v. Hertz Skycenter, Inc., 294 Ala. 336, 317 So. 2d 324 (1975); Rogers v. Smith, 287 Ala. 118, 248 So. 2d 713 (1971). Therefore, the amended injunction cannot bind the Wallaces as it purports on its face to do.
The appropriateness of the injunction as against Chunchula remains to be discussed. A trial court has wide discretion in determining whether to grant a preliminary injunction, and its decree will not be disturbed on appeal unless an abuse of that discretion is shown. Nevertheless, a trial court may be found to have abused its discretion where the decree violates some established rule of law or principle of equity or shows a clear and palpable error which results in manifest injustice. Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17 (Ala.1983); Watts v. Victory, 333 So. 2d 560 (Ala.1976); Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So. 2d 872 (1975); Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So. 2d 470 (1970).
*1217 An injunction will not issue unless without it the plaintiff would suffer immediate and irreparable injury and unless the plaintiff has no adequate remedy at law. Teleprompter of Mobile, Inc. v. Bayou Cable TV, supra; First City National Bank of Oxford v. Whitmore, 339 So. 2d 1010 (Ala.1976); Watts v. Victory, supra.
It is clear that Ciba-Geigy is not subject to immediate and irreparable injury and that it has adequate remedies at law. The injury is not immediate, because it has not even obtained a judgment against Chunchula, much less one that it cannot enforce. The possibility certainly exists that Chunchula will obtain a judgment on its counterclaim against Conecuh-Monroe or that, if Conecuh-Monroe's defenses prevail against Chunchula, Chunchula's defenses might likewise prevail against Ciba-Geigy. We make no judgment on these matters; we mention them merely to point out that Ciba-Geigy's possible injury is contingent, not immediate. "Injunctions will not be granted `merely to allay apprehension of injury; the injury must be both imminent and irreparable in a court of law.'" Teleprompter of Mobile, Inc. v. Bayou Cable TV, supra, 428 So. 2d at 19-20 (citation omitted).
Neither would any injury to Ciba-Geigy necessarily be irreparable. See King v. Coosa Valley Mineral Products Co., 283 Ala. 197, 215 So. 2d 275 (1968); Dudley v. Smith, 504 F.2d 979 (5th Cir.1974); and Denniston & Co. v. Jackson, 468 So. 2d 170 (Ala.Civ.App.1985). There is also a legal remedy for attachment of assets. See Code 1975, § 6-6-30 et seq. Thus Ciba-Geigy also has adequate remedies at law for any difficulty it might have in collecting any judgment it might obtain against Chunchula.
For the foregoing reasons, the petition for writ of mandamus in case number 85-334 is due to be denied, and the preliminary injunctions in cases number 84-1226 and 85-335 are due to be reversed. It is so ordered.
WRIT DENIED; REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ. concur.
[1] Chunchula's accountant testified that this disbursement was made to enable the Wallaces to pay taxes on Chunchula's income for the previous year. Because Chunchula is a Subchapter S corporation, its income is taxable to the Wallaces whether the income is distributed or not. The accountant also testified that the other disbursements to the Wallaces during the period after the controversy arose were ordinary distributions of income similar to those made in prior years.
[2] The second and third issues raised in the petition relate to the merits of the second appeal and will be discussed accordingly. | February 20, 1987 |
b634ac1b-2617-4b54-b370-6171bac7ffc1 | Ex Parte Smith | 686 So. 2d 245 | 1951611, 1951644, 1951779 | Alabama | Alabama Supreme Court | 686 So. 2d 245 (1996)
Ex parte Ken SMITH and Steve Whitson.
Re GREENSBORO TRACTOR, INC., et al.
v.
PONY EXPRESS, INC., et al.
Ex parte GREENSBORO TRACTOR, INC., and John Deere Insurance Company.
Re PONY EXPRESS, INC., et al.
v.
GREENSBORO TRACTOR, INC., et al.
Ex parte PONY EXPRESS COURIER CORPORATION.
Re GREENSBORO TRACTOR, INC., et al.
v.
PONY EXPRESS, INC., et al.
1951611, 1951644 and 1951779.
Supreme Court of Alabama.
December 13, 1996.
John Martin Galese and Jeffrey L. Ingram of John Martin Galese, P.A., Birmingham, for Ken Smith and Steve Whitson.
John D. Richardson and G. Randall Spear of Richardson, Daniell, Spear & Upton, P.C., Mobile, for Greensboro Tractor, Inc., and John Deere Insurance Company.
LaBella S. Alvis, Deborah Alley Smith, and James R. Bussian of Rives & Peterson, Birmingham, for Pony Express Courier Corporation.
SHORES, Justice.
These three petitions for the writ of mandamus relate to 1) a declaratory judgment action filed in Jefferson County by Pony Express, and 2) a negligence action for damages filed in Hale County by Greensboro Tractor, Inc., and John Deere Insurance Company. On January 20, 1995, a fire occurred at the business location of Greensboro Tractor, in Hale County. As a result of the fire, John Deere Insurance Company paid $920,000 to Greensboro Tractor under the terms of a contract of insurance for fire loss. Greensboro Tractor alleged that the fire was started by a lighted cigarette negligently dropped by Steve Whitson into some paper *246 on the loading dock at Greensboro Tractor. Whitson was at the time the driver of a Pony Express delivery vehicle owned by Ken Smith and operated by Smith pursuant to the terms of a cartage agreement between Smith and Pony Express.
We deny the writs.
On August 18, 1995, before suing, Greensboro Tractor and John Deere Insurance filed a discovery motion pursuant to Rule 27, A.R. Civ. P., which in certain circumstances allows limited discovery before an action is brought. The motion sought to compel Steve Whitson to give a blood sample so that his DNA could be compared with the DNA from a saliva sample found on the cigarette butt involved in the fire. Whitson had refused to give such a blood sample. The motion was filed in Whitson's county of residence, as Rule 27 requires. This motion was denied.
On September 26, 1995, Pony Express Courier Corporation filed a complaint pursuant to the Declaratory Judgment Act, § 6-6-223, Ala.Code 1975, in the Jefferson County Circuit Court, against Greensboro Tractor, John Deere Insurance, Steve Whitson, and Ken Smith; Pony Express sought a judgment declaring that Steve Whitson had not been an agent, servant, or employee of Pony Express at any time pertinent to the claims of Greensboro Tractor and John Deere Insurance Company. On October 10, 1995, Greensboro Tractor and John Deere Insurance filed an action in Hale County against Pony Express, Ken Smith, and Steve Whitson alleging negligent and/or wanton conduct and seeking money damages.
On October 30, 1995, Greensboro Tractor and John Deere Insurance filed a motion in the Jefferson County declaratory judgment action, asking that the case be dismissed or transferred to Hale County, based on the doctrine of forum non conveniens. The trial judge, Judge Edward L. Ramsey, denied the motion. Greensboro Tractor and John Deere Insurance petition this Court for a writ of mandamus directing the trial court either to dismiss the declaratory judgment action or to transfer that action to Hale County based upon the doctrine of forum non conveniens.[1]
Pony Express then moved the Hale County Circuit Court to enter an order dismissing Greensboro Tractor's complaint for damages, on the basis that the claims made in Hale County are compulsory counterclaims that must be asserted in the previously filed Jefferson County action. Judge Jack W. Meigs, of the Hale County Circuit Court, denied the motions to dismiss.
Smith and Whitson then petitioned this Court for a writ of mandamus directing Judge Meigs to dismiss the underlying negligence action; they claim that the negligence action must be asserted as a compulsory counterclaim in the previously filed declaratory judgment action pending in the Jefferson Circuit Court.[2] Pony Express submitted its own petition to this Court raising the same issues as Smith and Whitson's petition.[3]
Mandamus is an extraordinary remedy. One seeking the writ of mandamus must show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994); Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).
Jefferson County is the proper venue for the declaratory judgment action, and Hale County is the proper venue for the negligence action. Because the circuit judges have held that each action should stay in the county in which it was filed, we must determine whether they abused their discretion in so holding. When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court has ruled in an arbitrary and capricious manner. Ex parte Integon Corp., supra, citing Ex parte Ford Motor Credit Co., 561 So. 2d 244, at 247 (Ala.Civ.App.1990), citing Ex parte *247 GTE Automatic Elec., Inc., 448 So. 2d 385 (Ala.Civ.App.1984).
Greensboro Tractor and John Deere argue that the Jefferson County circuit judge abused his discretion in not dismissing or transferring the declaratory judgment action under the doctrine of forum non conveniens. § 6-3-21.1, Ala.Code 1975. In Ex parte Integon Corp., this Court explained the purposes of the doctrine of forum non conveniens:
Id. at 500. Greensboro Tractor and John Deere Insurance argue that the Jefferson County declaratory judgment action is due to be dismissed or transferred to Hale County under this doctrine.
Pony Express, Ken Smith, and Steve Whitson argue that the Hale County circuit judge abused his discretion in not dismissing the negligence action. They contend that the negligence claim must be brought as a compulsory counterclaim in the Jefferson County declaratory judgment action. They rely on Rule 13(a), Ala. R. Civ. P.; Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Construction Co., 466 So. 2d 83, 90 (Ala.1985); and Federated Guaranty Life Ins. Co. v. Wilkins, 435 So. 2d 10, 14 (Ala.1983).
We conclude that neither judge abused his discretion, and that none of the parties has a clear legal right to the order sought; thus, none of the parties is entitled to the writ of mandamus. Hale County is the proper venue for the negligence action. It is the county where the fire occurred and the county in which the majority of the witnesses reside.[4] Jefferson County is the proper venue for the declaratory judgment action, because that action involves the terms of a cartage agreement between Ken Smith and Pony Express, to which neither Greensboro Tractor, nor John Deere Insurance is a party. Pony Express seeks a judgment declaring that because of the terms of the cartage agreement it is not liable for the actions of Steve Whitson. The issues of fact and law presented in the declaratory judgment action are distinct and separate from those presented in the negligence action; thus, the negligence claim need not be presented as a compulsory counterclaim in the declaratory judgment action. Rule 13, Ala. R. Civ. P.
Pony Express, Steve Whitson, and Ken Smith's petitions seeking to have the Hale County negligence action dismissed or transferred to Jefferson County are denied, and Greensboro Tractor and John Deere Insurance Company's petition seeking to have the Jefferson County declaratory judgment action dismissed or transferred to Hale County is likewise denied.
1951611 WRIT DENIED.
1951644 WRIT DENIED.
1951779 WRIT DENIED.
HOOPER, C.J., and HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
[1] Case number 1951644.
[2] Case number 1951611.
[3] Case number 1951779.
[4] The witnesses include 10 employees of Greensboro Tractor, approximately 15 firemen from the Greensboro Fire Department who assisted in extinguishing the fire, a photographer from the local newspaper, and certain police officials who investigated the fire. The only witnesses not residing the Hale County are Smith and Whitson, who are defendants in the negligence action. | December 13, 1996 |
2f5aba1d-185a-49b4-bfa8-f1a6a5bb6255 | Starks v. Commercial Union Ins. Co. | 501 So. 2d 1214 | N/A | Alabama | Alabama Supreme Court | 501 So. 2d 1214 (1987)
Arthur J. STARKS and Linda Starks
v.
COMMERCIAL UNION INSURANCE COMPANY.
84-1143.
Supreme Court of Alabama.
January 9, 1987.
Frank M. Wilson of Beasley and Wilson, Montgomery, for appellants.
De Martenson and Rebecca L. Shows of Huie, Fernambucq & Stewart, Birmingham, for appellee.
*1215 STEAGALL, Justice.
Plaintiffs Arthur J. Starks and Linda Starks appeal from a summary judgment, made final pursuant to Rule 54(b), A.R. Civ.P., in favor of Commercial Union Insurance Company (hereinafter "Commercial Union").
In December 1984, the Starkses' minor child drowned in water that had collected in a drainage ditch maintained by the City of Montgomery. At the time of the child's death, Darrell Blake and Associates, Inc., a general contractor, was performing construction work under a contract with the City of Montgomery to make improvements in the ditch. The Starkses filed suit in the Circuit Court of Macon County against the owner of the property, the contractor, and insurance carriers who provided various coverages to the contractor.
The Starkses amended their complaint to include as a defendant Commercial Union, the general liability insurance carrier for Darrell Blake and Associates, Inc. The Starkses alleged that Commercial Union had a duty under its policy to inspect the construction site and to assure safe conditions or, in the alternative, that Commercial Union had voluntarily assumed that duty.
Commercial Union filed an answer, denying the allegations of the complaint as amended. Commercial Union later filed a motion for summary judgment, supported by the affidavit of Frank Penney. Mr. Penney made the following statement in his affidavit:
The Starkses subsequently amended their complaint to allege that it is generally accepted procedure in the insurance industry for insurance carriers such as Commercial Union to engage in an underwriting inspection of risks prior to acceptance and issuance of a policy, and that insureds such as the contractor rely on these inspections in planning safety. The amended complaint further alleged that it was reasonably foreseeable that Commercial Union's failure to inspect, or its negligent inspection of the construction site, would result in conditions unsafe and dangerous to members of the public, including the Starkses' minor child. It was also alleged that Commercial Union "voluntarily assumed a duty to inspect the construction site, insure safe conditions and advise Defendants Contractor, City and/or fictitious Defendants concerning safety." The Starkses' amended complaint also asserted the following:
Prior to the hearing on Commercial Union's motion for summary judgment, the *1216 Starkses filed a motion for continuance of that hearing, based on Rule 56(f), A.R. Civ.P. The Starkses' attorney supported this motion with his own affidavit containing the following statement: "As a result of the total lack of discovery Plaintiffs cannot respond by affidavit or otherwise to the affidavit attached to Defendant Commercial Union's motion for summary judgment. Plaintiffs will be unable to offer evidence in opposition to that motion until discovery has taken place." No continuance was allowed by the trial court. Following the hearing on Commercial Union's motion for summary judgment, the trial court expressly found that there was no just reason for delay in the entry of final judgment as to Commercial Union and expressly directed entry of a final summary judgment. See Rule 54(b), A.R.Civ.P.
The Starkses contend on appeal that the trial court erred by refusing to allow a continuance of the hearing on Commercial Union's motion for summary judgment, and by granting summary judgment based on their failure to state a legally recognized cause of action. We are unable to agree with these contentions.
Rule 56(f), Alabama Rules of Civil Procedure, provides:
Rule 56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts. Malloy v. Sullivan, 455 So. 2d 12 (Ala.1984). The rule "should be liberally applied to allow parties an ample opportunity to marshal necessary facts to support their respective positions." Central Acceptance Corp. v. Colonial Bank of Alabama, N.A., 439 So. 2d 144, 147 (Ala. 1983).
In the case at bar, the trial court did not allow the Starkses' request for a continuance of the hearing on Commercial Union's motion for summary judgment. The motion for continuance was filed on May 22, three weeks prior to the June 13 date set for hearing on the motion for summary judgment. The affidavit in support of the motion for continuance stated that the Starkses had received no response in regard to the discovery they had sought.
The record shows that on April 12 the Starkses had served written interrogatories, relating solely to venue, on Commercial Union. Although there is no indication in the record that Commercial Union answered the interrogatories, neither is there any indication that the Starkses sought to compel a response from, or sought any additional discovery from, Commercial Union prior to the June 13 hearing. With regard to defendant Darrell Blake and Associates, Inc., the Starkses filed a request for production of documents on April 18, followed by a motion to compel response filed on May 22. On June 10, Darrell Blake and Associates, Inc., filed a response to the request for production, agreeing to "make such documents as are not subject to objection and which are sought by this request available at the offices of [its attorney] for review by plaintiffs' attorney at a mutually agreed upon time." We find nothing in the record indicating that Darrell Blake and Associates, Inc., failed to make the documents available to the Starkses. We are not able to say that the Starkses presented to the trial court any reasons justifying the conclusion that they could not adduce facts to oppose Commercial Union's motion for summary judgment. Rule 56(f), A.R.Civ.P.
With respect to the propriety of the trial court's granting summary judgment, we note that a substantial portion of the briefs of both parties is devoted to contentions and countercontentions totally inapplicable to the single issue here presented: Whether Alabama law imposes a duty on a general liability insurer to undertake a safety inspection of the insured premises for the protection of a member of the general public as a third-party beneficiary under the policy.
*1217 On the one hand, the Starkses, citing Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971), contend that a cause of action exists in Alabama against a general liability insurance carrier who inspects a construction site and makes safety recommendations to a contractor. As the Starkses correctly point out, Alabama law recognizes a cause of action by an employee against a workmen's compensation carrier who undertakes to perform inspections of the employer's premises. Beasley, supra. The Beasley Court recognized the common law right of recovery for negligent inspection in favor of an employee. Such a cause of action is founded on the premise that one who volunteers to act, though under no duty to do so, is charged with the duty of acting with due care. United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala. 1977). This argument fails because, under the undisputed facts, no undertaking to inspect occurred; thus, Beasley, upholding liability in the context of a voluntary undertaking, is inapposite.
The Starkses also contend that a general liability insurance carrier owes a duty to third parties when it has knowledge of dangers on its insured's construction site which make it reasonably foreseeable that a failure to inspect will result in harm to third parties. Commercial Union, on the other hand, citing Armstrong v. Aetna Insurance Co., 448 So. 2d 353 (Ala.1983), urges affirmance on the ground that the trial court should have granted its earlier motion to dismiss for failure of the plaintiffs to state a claim on which relief could be granted. The question in Armstrong was whether a workmen's compensation carrier, in making a safety inspection, assumed the insured employer's duty as a premises owner to employees of independent contractors. The Court, holding there was no duty owed by the insurance carrier, stated:
448 So. 2d at 355. Commercial Union, insisting on its motion to dismiss, seeks to have this Court declare, in the abstract, that Armstrong, supra, is authority for holding that a third party has no standing to sue a general liability insurer for negligent inspection.
Faced with the plaintiffs' alternative claims for negligent inspection and for failure to inspect, the trial court properly denied the defendant's motion to dismiss and then looked to the evidence in support of and in opposition to that motion to determine if the plaintiffs had stated a viable claim for relief and, if so, whether there was a genuine issue of material fact with respect to such a claim. Finding no issue of fact, the trial court was presented with a simple, straightforward legal issue, as stated above.
In granting summary judgment, the trial court obviously and correctly concluded that this Court's holding in the Armstrong case necessarily limits the cause of action to a voluntary undertaking in favor of a class of persons covered by the policy of insurance and does not authorize a cause of action based upon a duty to inspect.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and HOUSTON, JJ., concur. | January 9, 1987 |
e223f1ac-4216-4dc0-b7c7-85e3971784a4 | McCullar v. UNIV. UNDERWRITERS LIFE INS. | 687 So. 2d 156 | 1930246 | Alabama | Alabama Supreme Court | 687 So. 2d 156 (1996)
Cindy McCULLAR
v.
UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY, et al.
1930246.
Supreme Court of Alabama.
November 22, 1996.
*159 J. Michael Tanner and Benjamin H. Albritton of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia; and J. O. Isom, Hamilton, for Appellant.
Danny D. Henderson and Clint W. Butler of Spurrier, Rice & Henderson, Huntsville, for Regency Chevrolet-Olds, Inc., E.B. Pinkerton and Roger Guin.
S. Dagnal Rowe and Alan P. Judge of Burr & Forman, Huntsville, for Universal Underwriters Life Ins. Company.
Garve Ivey of Wilson & King, Jasper, for amicus curiae Alabama Trial Lawyers Association.
M. Roland Nachman of Balch & Bingham, Montgomery, for amicus curiae Consumer Credit Insurance Association.
Sabrina Andry Simon of Lightfoot, Franklin, White & Lucas, Birmingham; and Richard E. Barnsback and Phillip E. Stano, American Council of Life Insurance, Washington, DC, for amicus curiae American Council of Life Insurance.
Counsel on application for rehearing:
J. O. Isom, Hamilton; J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia; Garve Ivey, Jr. of King & Ivey, Jasper; and Barry A. Ragsdale of King & Ivey, Birmingham, for appellant.
Danny D. Henderson of Henderson & Butler, Huntsville, for Regency Chevrolet-Olds, Inc., E.B. Pinkerton and Roger Guin.
S. Dagnal Rowe, Alan P. Judge, William F. Murray, Jr., F. A. Flowers III, and Robert H. Rutherford of Burr & Forman, Birmingham and Huntsville, for Universal Underwriters Life Ins. Company.
Lanny S. Vines and Michael L. Allsup of Emond & Vines, Birmingham; for amicus curiae Alabama Trial Lawyers Association.
Cathy S. Wright of Maynard, Cooper & Gale, P.C., Birmingham, and Phillip E. Stano, American Council of Life Insurance, Washington, DC, for amicus curiae American Council of Life Insurance.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Automobile Dealers Ass'n of Alabama, Inc.
Matthew C. McDonald of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amicus curiae Alabama Retailers Ass'n.
John R. Chiles and Richard H. Sforzini, Jr. of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Financial Services Ass'n.
John M. Galese, Birmingham, for amicus curiae Independent Automobile Dealers Ass'n.
Dennis Pantazis of Gordon, Silberman, Wiggins & Childs, Birmingham, for amicus curiae American Automobile Manufacturers Ass'n.
John R. Chiles of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Lenders Ass'n.
H. Hampton Boles and Teresa G. Minor of Balch & Bingham, Birmingham, for amicus curiae Alabama Bankers Ass'n.
*160 Michael A. Bownes, General Counsel, for amicus curiae Alabama Department of Insurance.
Scott Corscadden, General Counsel, Alabama State Banking Department, for amici curiae Alabama State Banking Department and Superintendent of Banks Kenneth R. McCartha.
COOK, Justice.
The opinion of September 29, 1995, is withdrawn and the following opinion is substituted therefor.
The plaintiff, Cindy McCullar, appeals from a summary judgment for the defendants in her fraud action. McCullar alleged that when she bought an automobile Universal Underwriters Life Insurance Company and the dealership, Regency Chevrolet-Olds, Inc., acting through the dealership's employees, fraudulently sold her more credit life and disability insurance than she needed. She sued the Regency dealership and two of its employees, seeking damages for the alleged fraud; she also sued Universal Underwriters Life Insurance Company, which issued the credit life and disability policies, seeking to impose liability against that defendant on an agency theory.
McCullar alleged in her complaint:
Alan McCullar and his wife Cindy McCullar purchased a new Oldsmobile Cutlass Ciera automobile from Regency in May 1990. The purchase price was $14,248.19. The McCullars paid $1,500 down, leaving an unpaid balance of $12,748.19, which the couple intended to finance. During the transaction, Regency employees E.B. Pinkerton and Roger Guin, acting as agents for Universal, sold the McCullars credit life and credit disability insurance on Alan McCullar. The total cost of the insurance$1,037.10 for the credit life insurance and $1,306.75 for the credit disability insuranceincreased the balance to $15,108.54. The McCullars signed a contract to pay that amount, plus precomputed interest, totaling altogether $20,742.00, over 60 months at payments of $345.70 per month.
The McCullars divorced in 1990. Cindy McCullar received title to the car as part of the divorce settlement, and she made the monthly payments until she defaulted on the loan.
On May 7, 1993, McCullar sued Universal, Regency, and Regency employees Pinkerton *161 and Guin (Regency, Pinkerton, and Guin will be referred to together as "Regency") in the Marion County Circuit Court, alleging fraud. McCullar charged that Regency sold the credit life insurance with a premium based on $20,742.00, the total amount of the contract, instead of a premium based on $15,108.54, the amount financed under the contract. She alleged that doing this allowed Regency and Universal to charge a higher premium for credit life insurance, $1,037.10 rather than $755.45, and, similarly, allowed them to charge a higher-than-necessary premium for disability coverage. Further, McCullar asserts that Regency did not tell her that the amount of insurance the McCullars were purchasing was more than would be needed to pay off the debt in the event of Alan McCullar's death. With her complaint, McCullar simultaneously filed a request for production of documents, seeking discovery of information relating to Universal policies sold by Regency. Universal and Regency timely answered, denying the charges, and, on August 16, 1993, they moved for a summary judgment.
On August 17, 1993, Regency requested that the court set a hearing date on the summary judgment motion. The court set a September 21, 1993, hearing date, over McCullar's objection. She asked the court to delay the hearing, saying she had not completed discovery. The court entered a summary judgment for Universal and Regency on October 19, 1993. McCullar appeals.
McCullar raises two issues on appeal. First, she argues that the court should not have entered the summary judgment without giving her an opportunity to conduct what she considered crucial discovery. Second, she argues that she had shown a genuine issue of material fact that made a summary judgment improper.
McCullar first argues that the trial court should have delayed the summary judgment hearing because she had discovery pending. We first acknowledge that a trial judge has broad discretion to grant or to deny a motion for a continuance. Wood v. Benedictine Society of Alabama, Inc., 530 So. 2d 801, 805 (Ala.1988). Continuances are not favored; therefore, the trial court's denial of a continuance will not be reversed except for an abuse of discretion. Selby v. Money, 403 So. 2d 218, 220 (Ala.1981).
It is established that the mere pendency of discovery does not bar the entry of a summary judgment. Reeves v. Porter, 521 So. 2d 963 (Ala.1988). If the trial court, from the evidence before it, or the appellate court, from the record, can ascertain that the matter subject to production, or the answers to pending interrogatories, are crucial to the nonmoving party's case, then it is error for the trial court to enter a summary judgment before the items have been produced or the answers given. Reeves, 521 So. 2d at 965. The burden of showing that these items are crucial is upon the nonmoving party, who can carry that burden by complying with Ala. R.Civ.P. 56(f), which reads:
See Reeves, 521 So. 2d at 965 (quoting an earlier version of Rule 56(f)).
McCullar asserts that Regency and Universal did not respond to her request for production of documents and that she did not have the opportunity to depose Harland Dyer or Roger Floyd, who supplied affidavits for those defendants. But she has not met her burden of proving how information from them is crucial to her case. Although McCullar contended to the trial court that, without the requested documents, she could not properly depose Dyer and Floyd, nothing in the record indicates that she specifically told the court why the discovery was significant to her effort to rebut the summary judgment motion. McCullar has not explained to this Court why her discovery requests were so important that the trial court should have delayed the hearing on the summary judgment motion. Therefore, we must *162 conclude that the trial court, in denying the motion for a continuance, did not abuse its broad discretion. The burden is on the nonmoving party to comply with Rule 56(f), or to otherwise prove that the matter sought by discovery is or may be crucial to the nonmoving party's case. McCullar did not do this; thus, we find no error in regard to McCullar's first argument.
McCullar next argues that she had presented a genuine issue of material fact and thus that the summary judgment was improper. An appellate court reviews a summary judgment by the same standard employed by the trial court when it rules on a summary judgment motion. Southern Guaranty Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala.1989). A summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ala.R.Civ.P. 56(c)(3). Like the trial court, the appellate court views the evidence, and resolves all reasonable doubts, in favor of the nonmovant. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403 (Ala.1990). The burden is on a party moving for a summary judgment to show that no genuine issue of material fact exists; once the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to rebut the prima facie showing. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala.1992).
McCullar argues that there was a genuine issue of material fact as to whether the defendants committed fraud in regard to her purchase of insurance. She claims that Regency deceived her by basing the credit life and credit disability insurance premiums on the unpaid balance of the purchase price plus interest, instead of basing the premiums on the unpaid balance alone. Regency counters with the argument that calculating the insurance premium as it did is within the law. Regency submitted affidavits from Roger Floyd, supervisor of the Alabama Banking Department's Bureau of Loans, and Harland Dyer, an employee of the Alabama Department of Insurance, to rebut McCullar's claim.
Floyd is one of the administrators responsible for enforcing that body of statutory law commonly called the "Mini-Code," Ala.Code 1975, §§ 5-19-1 to -31. The superintendent of banks is authorized under § 5-19-21 to make regulations necessary to enforce the Mini-Code. Rule 4(a) of the Department of Insurance regulations provides that all insurance offered pursuant to § 5-19-20 must comply with the Department's rules and regulations. Section 5-19-20 states:
Floyd testified that the premium for decreasing term credit life insurance can be written for the total of payments due on add-on/precomputed-interest credit sales transactions. Such a premium he said, does not have to be calculated solely on the principal amount of the credit transaction. C.R. 31.
Harland Dyer is an actuary who interprets the insurance laws. He testified that the State Banking Department interprets the phrase "amount ... of credit" to mean the "total of payments" on an "add-on/precomputed-interest" credit transaction and that this interpretation is consistent with the Insurance Department's Regulation No. 28, Section III(A) and (B). C.R. 67. Section III(B), which addresses "individual credit life insurance," reads:
McCullar attempted to rebut the testimony of Dyer and Floyd with testimony from Robert H. Harrison, a Compass Bank vice-president licensed to sell credit life insurance policies in connection with financing automobile purchases. Harrison testified that McCullar's unpaid loan balance, when the loan was made in May 1990, was $15,108.54 and that to sell her life insurance based on $20,742 was to exceed what Regulation 28 allowed, because, he said, under that regulation the amount of insurance could "never exceed the approximate unpaid balance of the loan," when the repayment is made in "substantially equal installments."
The conflicting testimony brings into question the agency's interpretation of the statute. The interpretation placed on a statute by the executive or administrative agency charged with its enforcement is given great weight and deference by a reviewing court. Alabama Metallurgical Corp. v. Alabama Public Service Comm'n, 441 So. 2d 565 (Ala. 1983); Hulcher v. Taunton, 388 So. 2d 1203, 1206 (Ala.1980); Employees' Retirement System v. Oden, 369 So. 2d 4 (Ala.1979); Moody v. Ingram, 361 So. 2d 513 (Ala.1978). "[T]he interpretation of an agency regulation by the promulgating agency carries "`controlling weight unless it is plainly erroneous or inconsistent with the regulation."` United States v. Larionoff, 431 U.S. 864, 872 [97 S. Ct. 2150, 2155, 53 L. Ed. 2d 48] (1977) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 [65 S. Ct. 1215, 1217, 89 L. Ed. 1700] (1945))." Brunson Constr. & Environmental Services, Inc. v. City of Prichard, 664 So. 2d 885, 890 (Ala.1995).
This Court must interpret plain language in a statute to mean exactly what it says. Coastal States Gas Transmission Co. v. Alabama Public Service Comm'n, 524 So. 2d 357 (Ala.1988). Words should be given their natural, plain, ordinary, and commonly understood meaning. Alabama Farm Bureau Mutual Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219 (Ala.1984). This is especially true in a case like this, given the overall legislative intent behind the Mini-Code. The Mini-Code, § 5-19-1 through § 5-19-31, was enacted by the legislature to provide a comprehensive consumer finance law. Holcomb v. Henderson Nat'l Bank, 399 So. 2d 850 (Ala.Civ.App.1981). The aim is to protect the consumer. Spears v. Colonial Bank, 514 So. 2d 814 (Ala.1987); Derico v. Duncan, 410 So. 2d 27 (Ala.1982). The intention of the legislature was to include all creditors within the applicability of the Mini-Code, regardless of their status as banks, credit unions, or some other form of organization. McCartha v. Iron & Steel Credit Union, 373 So. 2d 328 (Ala.Civ.App.1979).
Section 5-19-20 provides that insurance on a "credit transaction shall not exceed the approximate amount ... of the credit." Department of Insurance Regulation 28 provides that the amount of insurance written "shall not exceed the original face amount of the specific contracts" and that where repayment is made "in substantially equal installments, the amount of insurance shall never exceed the approximate unpaid balance of the loan." Here, there can be no dispute that the natural, plain, ordinary, and common meanings of the terms "amount ... of credit," "original face amount," and "unpaid balance of the loan" all refer to $15,108.54, the amount McCullar had to borrow to pay the balance she owed on the car plus any accumulated interest. This amount, according to the contract, is $15,108.54, the total amount resulting from adding to the unpaid balance of the cash price the cost of the credit life and credit disability insurance premiums (i.e., $12,748.19 + $2,360.35 = $15,108.54). It contravenes the plain language of the statute to interpret the phrase "amount ... of credit" to mean the "total of payments" on an add-on/precomputed-interest credit transaction. The interest, or the cost of borrowing money, is not "fixed," when considered in comparison to the cost of purchasing the automobile. For example, if Alan McCullar had died before the couple made the first installment, the insurer would not have paid $20,742.00 to pay off the loan. Subsequent to that first payment, the insurer, in the event *164 of Alan McCullar's death, would have paid only the balance plus interest accrued to that point. The only way the insurer might have had to pay $20,742.00 to pay off the initial loan of $15,108.54 would have been for the couple to miss all payments for 60 months and then for Alan McCullar to diebut the policy language avoids such liability for the insurer. The legislature, when it passed this consumer protection statute, did not intend to allow a lender to base an insurance premium on an amount that the insurer would never be called upon to pay to satisfy the loan in the event of death. Therefore, we hold that the State Insurance Department's interpretation of its Regulation 28, as enforced by the State Banking Department via that Department's Rule 4(a), is inconsistent with the plain meaning of § 5-19-20(a). The original face amount of the specific contract of indebtedness does not include the interest that would be paid under an add-on/precomputed-interest credit transaction. "Insurance with respect to any credit transaction shall not exceed the approximate amount" that an insurer would be called upon to pay under the terms of the agreement. § 5-19-20. We note that credit disability policies insure a risk based on the total of payments provided for in the purchaser's contract; therefore, this holding is not applicable to those policies, but is restricted to credit life insurance policies.
Regency and Universal's assertion that they sold McCullar credit life and disability insurance in a manner consistent with the State Insurance Department's interpretation of Regulation 28 does not dispose of the fraud question. McCullar specifically asserts (1) that Regency told her the amount of insurance she purchased was the amount needed to pay off the debt on the car in the event of Alan McCullar's death; (2) that she relied on Regency's statements in deciding how much life insurance to purchase; (3) that at no time did Regency tell her that the pay-off on the car loan was actually less than the amount of the insurance she was purchasing. McCullar claims that she did not discover that she had purchased more life insurance than she needed to until November 1992, two and one half years after she had purchased it.
"Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud." Ala.Code 1975, § 6-5-101 (emphasis added). Fraud includes four elements: (1) There must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation; and (4) the plaintiff must be damaged as a proximate result of the reliance. Harmon v. Motors Ins. Corp., 493 So. 2d 1370, 1373 (Ala.1986). We cannot ascertain from the record whether Regency disclosed to McCullar any information relevant to the insurance and banking laws, the cost of premiums allowed, or the type of installment loan contract to which McCullar agreed. Thus, there is a genuine issue of material fact as to whether Regency acted fraudulently with regard to the credit life and credit disability insurance it sold McCullari.e., as to whether it misrepresented the coverage she received as being the amount needed to cover the principal loan balance in the event of Alan McCullar's death.
Whether Regency's actions constituted fraud under Ala.Code 1975, § 6-5-101, is a question of fact for the jury. Therefore, we reverse the summary judgment. However, because of the peculiar nature of this class of case, namely, where the defendants have fashioned their sales of credit life insurance so as to sell coverage equal to the total amount of payments due under the contract, and have done so based upon the interpretation of the State Insurance Department, we determine that the species of fraud under which a plaintiff can assert a claim is that of an "innocent/mistaken" misrepresentation.
On application for a rehearing, the appellees request that our holding regarding the State Insurance Department's interpretation of its Regulation 28, as enforced by the Banking Department's Rule 4(a) be made prospective only, should this Court not change the result of the opinion from original deliverance. In effect, the appellees argue that they relied on the interpretation and *165 construction of the statute rendered by the State Insurance and Banking Departments and that any change by this Court should be made to apply only in the future.
Although circumstances occasionally dictate that judicial decisions should be applied prospectively, James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536, 111 S. Ct. 2439, 2443-44, 115 L. Ed. 2d 481 (1991), retroactive application of judgments is "overwhelmingly the norm[al]" practice. Id. at 535, 111 S. Ct. at 2443. Retroactivity "is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it." Id. at 535-36, 111 S. Ct. at 2443.
The United States Supreme Court has suggested consideration of the following factors in choosing whether to apply a judicial decision prospectively:
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 355, 30 L. Ed. 2d 296 (1971).
Under Alabama law, the first of these factors will, in many cases, prove dispositive of the issue. This conclusion follows from Ala.Const. 1901, § 13, which provides in pertinent part: "That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law ..." This provision prevents, among other things, the abrogation by the legislature or this Court of a cause of action that has vested. Kruszewski v. Liberty Mut. Ins. Co., 653 So. 2d 935 (Ala.1995); Murdock v. Steel Processing Servs., Inc. 581 So. 2d 846 (Ala.1991); Yarchak v. Munford, Inc., 570 So. 2d 648 (Ala.1990), cert. denied, 500 U.S. 942, 111 S. Ct. 2237, 114 L. Ed. 2d 478 (1991); Reed v. Brunson, 527 So. 2d 102 (Ala.1988); Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala.1986); Mayo v. Rouselle Corp., 375 So. 2d 449 (Ala.1979); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). A cause of action has vested if it has accrued at the time of the legislation or the judgment. It accrues "when a person sustains a legal injury upon which an action can be maintained." Cantrell v. Stewart, 628 So. 2d 543, 545 (Ala. 1993).
Essentially, then, the retroactivity issue turns on the extent to which a judicial decision affects pending or potential causes of action or preexisting rights. A decision may create or destroy existing causes or rights, see Roberts v. M & R Properties, Inc., 612 So. 2d 432, 439 (Ala.1992) (applying prospectively a judicial rule abrogating the right of a "tax-deed purchaser" to collect "interim taxes pursuant to the assignment provision in [Ala.Code 1975,] § 40-10-135"); or it may simply declare an existing principle of law. Legal injuries based on existing principles of lawas declared by decisions of the latter varietyare vested as of the date of the decision. Because such injuries are actionable as of the date of the decision, they are protected by § 13. For a number of reasons, it is apparent that this case is of the latter variety.
First, it is undisputed that the provision of § 5-19-20(a) at issue in this case has not, heretofore, been construed by any Alabama *166 appellate court. Thus, it cannot be contended that we have "overrul[ed] clear past precedent." Huson, 404 U.S. at 106, 92 S. Ct. at 355. Nor does this opinion set forth a new rule. A "case does not announce [a] new rule unless it indicates `that the issue involved was novel, that innovative principles were necessary to resolve it, or that the issue had been settled in prior cases in a manner contrary to the view held by [the Court].'" Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,___, 115 S. Ct. 1745, 1754, 131 L. Ed. 2d 820 (1995) (Kennedy, J., concurring; quoting Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S. Ct. 2224, 2233, 20 L. Ed. 2d 1231 (1968)).
Second, this opinion does not construe § 5-19-20(a) in any esoteric fashion, but, rather, according to its plain meaning. Thus, it can hardly be contended that our interpretation "was not clearly foreshadowed." 404 U.S. at 106, 92 S. Ct. at 355. For these reasons, claims based on interpretations consistent with this opinion and arising out of occurrences antecedent thereto, if not barred by the statute of limitations, must be deemed to be vested and subject to § 13 protection.
Moreover, the goal of the Mini-Code is "the protection of the public, specifically, the consumer/debtor." Derico v. Duncan, 410 So. 2d 27, 31 (Ala.1982); see also Spears v. Colonial Bank of Alabama, 514 So. 2d 814, 816 (Ala.1987). A retroactive application of this opinion will tend to effectuate that goal. See Huson, 404 U.S. at 107, 92 S. Ct. at 355-56.
Having weighed these and other considerations, we decline to apply the rule of this case prospectively only. The cause is remanded for proceedings consistent with this opinion.
ALMON and SHORES, JJ., concur.
KENNEDY and BUTTS, JJ., concur in the result.
HOUSTON, J., concurs in the result to reverse, but disagrees with the rationale of the lead opinion.
HOOPER, C.J., concurs in part and dissents in part.
MADDOX, J., dissents (Justice MADDOX's dissenting opinion follows the appendix to Chief Justice HOOPER's special opinion).
HOUSTON, Justice (concurring in the result to reverse, but disagreeing with the rationale of the lead opinion).
I agree with the dissenting portions of Chief Justice Hooper's special opinion, but I disagree with that portion of his opinion styled: "IX. FURTHER DISCOVERY."
The lead opinion states that "[t]his Court must interpret plain language in a statute to mean exactly what it says" and that "[w]ords should be given their natural, plain, ordinary, and commonly understood meaning." 687 So. 2d at 163. I certainly thought that that was our standard of review (see John Deere Co. v. Gamble, 523 So. 2d 95, 99-100 (Ala. 1988)). For a thorough discussion of this rule of statutory construction, see Justice Maddox's dissent in Roe v. Mobile County Appointment Board, 676 So. 2d 1206 (Ala. 1995). It appears that a majority of this Court again accepts the plain meaning rule of statutory construction.
"Insurance with respect to any credit transaction shall not exceed the approximate amount and term of the credit." Ala.Code 1975, § 5-19-20. What is the plain meaning of this sentence of the statute? Neither "credit" nor "credit transaction" nor "approximate amount ... of the credit" is defined in § 5-19-1 (the "Definitions" section of the Mini-Code).
After discussing this sentence with my staff for one hour, consulting law dictionaries, and consulting all of Chapter 19 of Title 5, Ala.Code 1975, I have come to one conclusion: I do not know what the natural, plain, ordinary, and commonly understood meaning of that sentence is.
In interpreting the last sentence of § 5-19-20, Department of Insurance Regulation 28 provides that the amount of credit insurance *167 written "shall not exceed the original face amount" of the specific contract. I cannot say that the sentence could not be interpreted that way. The face amount of the contract at issue is $20,742. Regulation 28 further provides that "where the indebtedness is repayable in substantially equal installments [as it was in this case], the amount of insurance shall never exceed the approximate unpaid balance of the loan." I do not believe that it did in this case. I cannot say that the last sentence of § 5-19-20 could not be interpreted that way. The face amount of the credit insurance policy, $20,742, is the same as the face amount of the credit contract. Each month, as payments are made on the contract, the amount owed on the contract and the amount that the credit life and disability insurance policies will pay in the event of death or a covered disability reduce by the same amount.
The summary judgment was entered based upon the affidavits of Roger Floyd and Harland Dyer. Their affidavit testimony was disputed by the affidavit of Robert H. Harrison. Normally, this would be enough to defeat the defendants' motion for summary judgment; certainly, it is enough to make McCullar's requested deposition of Floyd and Dyer crucial to McCullar's case. Therefore, under Reeves v. Porter, 521 So. 2d 963, 965 (Ala.1988), I would hold that it was reversible error for the trial court to grant the defendants' motion for summary judgment without giving McCullar the opportunity to cross-examine Floyd and Dyer.
Therefore, while I disagree with the rationale of the plurality opinion, both as to the procedural ruling regarding discovery and as to the substantive ruling regarding the insurance premium, I agree that the judgment should be reversed.
HOOPER, Chief Justice (concurring in part and dissenting in part).
I would grant the application for rehearing. I was not a member of this Court when it first considered this case. I would have dissented from that first opinion insofar as it related to the fraud issue, and in that regard I dissent from the substitute opinion issued today. I dissent because that opinion labels as fraud an accounting practice common in the insurance industry, one that has been used and approved for approximately 25 years; because it interprets as clear a statute that is at best ambiguous; because it demands punishment of companies that had no idea their practice was improper; and because it springs a surprising new cause of action upon those companies, in violation of state and federal due process guarantees.
The question in this case was whether the credit life insurance coverage amount used by Universal Underwriters and Regency Chevrolet-Olds, Inc., to determine the premium to be paid by the McCullars was excessive. The plurality has determined that there exists a genuine issue of material fact as to that question, even though the method used by Universal Underwriters to determine that premium has been the common business practice of insurers not only in the State of Alabama, but also throughout the country. It is a business practice that was approved by the State of Alabama Banking Department and the State Insurance Department, the very agencies charged with interpreting the state statute the plurality uses to call into question the insurance provided by Universal Underwriters. It is a business practice that has been accepted as a legitimate method of accounting for credit life insurance in at least 42 states of this country and approved in their statutes and by their regulatory agencies. The amount of the insurance was disclosed to the McCullars at the time of the purchase; there was nothing hidden or concealed from them when they purchased the car and the amount of credit insurance necessary to cover the purchase. The amount insured was what was needed for this kind of loan contract.
What motive would Universal Underwriters or Regency Chevrolet-Olds have to hide from the McCullars the "true" amount of credit life insurance "necessary" to cover their purchase when the amount considered necessary to cover such a purchase was an amount allowed by the state regulatory agencies and was used by most other dealers in the State of Alabama and the rest of the country? The defendants in this case had no reason to hide from the McCullars what was *168 a perfectly acceptable, common, and legal practice. If asked by these purchasers what amount of credit life insurance was needed to cover their purchase, the defendants would have honestly and legitimately responded, "You need an amount that will cover the total of the payments for this car." And that is exactly what the plaintiffs received. To conclude otherwise is not to properly apply the law to the facts. To call this transaction fraud is not only ridiculous, it borders on being inventive. I commiserate with the defendants in this case. Justice Almon in a 1981 dissent expressed the surprise a defendant might feel in a case in which this Court had invented fraud where none existed before: "As Alice said, `Dear, dear! How queer everything is today! And yesterday things went on just as usual. I wonder if I've changed in the night.'" Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 14 (Ala.1981). I am sure that this expressed what Universal Underwriters and Regency Chevrolet-Olds felt the day after the plurality's original opinion was released. One day they were engaged in a legitimate business practice. The next day they woke up to learn they were engaged in fraud. There is no basis for labelling as fraud the practice of calculating the amount of credit life insurance based on the "total of payments" necessary to make the purchase. The defendants' summary judgment was entirely appropriate and should be affirmed.
Ala.Code 1975, § 6-5-100 states, "Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action." Ala.Code 1975, § 6-5-101 states, "Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud." Fraud requires proof of four elements: "(1) There must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation, and; (4) the plaintiff must be damaged as a proximate result." Carter v. Innisfree Hotel, Inc., 661 So. 2d 1174 (Ala.1995); Harmon v. Motors Insurance Corp., 493 So. 2d 1370, 1373 (Ala.1986).
The plurality explains its rationale for finding potential fraud by stating that there are certain factors that Regency did not comply with:
687 So. 2d at 164. Must a defendant offer evidence of these factors in order to defend against fraud claims? Or are these factors somehow related to the elements necessary for a plaintiff to prove fraud? The opinion does not explain. Was Regency required to disclose to the McCullars some information about the insurance and banking laws before charging them the standard industry rate for credit life insurance? Why would Regency have to defend itself when Regency knew of no reason to be criticized for charging this amount of credit life insurance? Only one of the factors stated in the plurality opinion seems to be relevant to the issue of whether Regency misrepresented the amount of credit life insurance needed by the McCullars. That factor is whether the amount of the credit life insurance premium was disclosed. It was disclosed.
Having read the record, I conclude that the sales contract with Regency appears to have set forth the terms clearly. In the sales contract, under "Federal Truth-In-Lending Disclosures," the block entitled "Total of Payments" contains the amount $20,742.00. In the block at the bottom left corner of the front page entitled "Credit Life," taking up a *169 space that is impossible for a reader to miss, the premiums are listed for both the credit life and the credit disability insurance $1,037.10 and $1,306.75. Beside the subblock listing the premium for the credit life insurance is another subblock with the words "I want credit life insurance." Directly beside that subblock is another subblock with the signature of the buyer, "Alan McCullar." The same signature and the same format appear with the disclosure of the credit disability insurance premium. This sales contract was entered into the record.
The credit life insurance policy is also explicit. It states who should receive payment in the event the policy amount paid is greater than the debt owed. This is a distinct possibility because when the policy is written, no one knows if or when the debtor might die or become disabled. Therefore, there is no way to know exactly how much excess coverage might exist on the date the debtor dies. The policy clearly covers this contingency. First, the excess is paid to the debtor's secondary beneficiary. Of course, the creditor is the primary beneficiary of the policy because the amount owed is paid directly to the creditor to cover the debt. If there is no secondary beneficiary, then the excess is paid to the debtor/insured's estate. This raises the question of what damage the McCullars suffered as a result of purchasing this insurance. Cindy McCullar defaulted on the car payments. It is not clear how she could have made a claim upon a contract for insurance that is in default.
The "Motor Vehicle Installment Contract" states that the 60 monthly payments will be the same each month, $345.70. The total amount of the payments, $20,742.00, is clearly listed on the contract. Therefore, this is an installment contract involving equal monthly installments. The interest rate and the amount of interest that would be paid over a 60-month period are clearly listed. This is a standard consumer motor vehicle sales contract. I know of no additional information needed to decide what statute and regulation governed this particular installment contract. I do not know what more would need to be disclosed to the McCullars in order for Regency to avoid the fraud claim. The opinion does not explain in what way these facts were not disclosed. Nor does it explain what additional information should have been disclosed to the customer in order for Regency to be successful on a summary judgment motion. Are dealers now required to give purchasers some type of lesson in financing and on what state law allows? If Regency had done so in this case, it would have told the McCullars that the total-of-payments method is an acceptable method of determining the necessary amount of life insurance to cover an add-on/precomputed interest contract.
Although the factors cited above, regarding what the plurality says Regency should have disclosed to the McCullars, are juxtaposed with the conclusion that Regency may have acted fraudulently, the opinion directs more attention to another issue, and for good reason. The issue of the legality of the credit insurance policy is fatal to the plaintiff's claim. It is clear from the affidavits of Mr. Dyer, consulting actuary for the State of Alabama Department of Insurance, and Mr. Floyd, supervisor of the Bureau of Loans for the State of Alabama Banking Department, that Regency and Universal in no way violated Ala.Code 1975, § 5-19-20 (part of the Mini-Code) or State Department of Insurance Regulation No. 28, § III(A) and (B). The State Banking Department is the agency charged under the Mini-Code with making the regulations and rules under which the Mini-Code is administered. The plurality opinion states that the agencies have misinterpreted the statute. The agencies have interpreted the statute and the regulation this particular way for approximately 25 years. Their interpretation is correct, and it is in accord with the rule in a majority of the states of this country. (See Appendix.) Even if the agencies had misinterpreted the statute, Regency and Universal, who have relied on the agencies' interpretation for years, should not be charged with fraud, because they misrepresented nothing to the McCullars. Why would they try to misrepresent something that to their knowledge was completely legitimate and in accord with Alabama law and regulations?
*170 Judge Cherner of the Tenth Judicial Circuit of Alabama faced almost identical facts in a case in 1986. One piece of history indicating how long credit insurance has been issued as a "total of payments" type of policy in the State of Alabama is that case, Payne v. Ford Motor Credit Co. and Belcher Motor Co. (Jefferson Circuit Court, CV-83-5010601, August 18, 1986). In that case, Judge Cherner entered a summary judgment. Mr. Floyd provided an affidavit in that case that is almost identical to the affidavit he provided in this case. Judge Cherner noted the importance of courts' giving deference to administrative agencies and their interpretation of statutes, quoting a very appropriate statement from a decision of the United States Court of Appeals for the Fifth Circuit:
Allen M. Campbell Co. General Contractors, Inc. v. Lloyd Wood Construction Co., 446 F.2d 261 (5th Cir.1971). How does the plurality opinion stand up to that standard? Not very well.
Section 5-19-20 states:
The Banking Department determines the "authorized premium permitted for such coverages." Department Regulation No. 28, § III(B) reads:
The plurality opinion states that the words "approximate unpaid balance of the loan" can mean only the principal owed, not including interest. The wording of the regulation does not explicitly refer to the principal amount of the loan only, in such a way that this Court should ignore the opinions of the responsible agencies. The common understanding of a person asked, "How much do you have left to pay on your car loan?" is that the answer would include principal and interest. I cannot imagine the McCullars subtracting out the interest when asked what they still owed on their car before this lawsuit was filed. Assuming there exists a conflict as to the meaning of this term, where should this Court turn for guidance? This Court should consult the administrative agencies responsible for overseeing this entire subject. The representative of the Insurance Department and the supervisor of the Bureau of Loans for the Banking Department state that their interpretation shows that Regency and Universal *171 complied fully with the law and the regulation. That is how their agencies have interpreted the statute and the regulation for years.
Notice that § 5-19-20(a) makes no distinction between credit life insurance and credit disability insurance, which the plaintiffs have conceded should be treated differently from credit life insurance. The plaintiffs admit that issuers of credit disability insurance may use the total of payments to determine the amount of insurance. Yet that statute uses the same terminology for both types of credit insurance to define the limit upon the amount of insurance allowed"approximate amount and term of the credit." The legislature has shown by its application of the same phrase to each type of credit insurance that it makes no distinction between the amount that may be allowed for credit disability insurance versus credit life insurance. If the legislature had intended that the two types of insurance be treated differently, certainly it would have used different language for each type.
Even if we decided that the statute and the regulation are unclear and that this Court must supply the meaning, should we allow the defendants to be charged with liability because they adhered to their understanding and the state agencies' understanding of the meaning of the terms involved? We would not allow a criminal defendant to be charged with a crime based on a vague statute, which a court could interpret in any fashion it pleased. Why are automobile dealerships and insurance companies afforded less protection than criminal defendants?
Justice Butts has written an excellent opinion involving a similar issue. In Farmer v. Hypo Holdings, Inc., 675 So. 2d 387 (Ala. 1996), he said:
675 So. 2d at 390. Justice Butts's opinion in Hypo Holdings changed the entire result of an earlier opinion in that case in response to an application for rehearing. This Court should not be above admitting its error in this case.
As evidenced by the affidavits of Floyd and Dyer and the memo in the record from C.S. Blackledge, the supervisor of the Bureau of Loans before Mr. Floyd, the Banking Department and the Insurance Department have consistently interpreted § 5-19-20(a) since 1981, at the latest. Since that time, this particular section of the Mini-Code has been amended twice (see Ala. Acts 1986, Act No. 86-304, and Ala. Acts 1987, Act No. 87-766). Neither of those amendments overruled the published administrative interpretations of that statute. Therefore, this case fits neatly into the category of cases involving an interpretation of a statute by administrative agencies. In this case, the Court would not be "blindly" following the interpretation of the statute, but it would be adhering to a reasonable interpretation for which the judges of this Court should not "substitute their personal assessment of the meaning of the regulation for the considered judgment of the agency." Allen M. Campbell Co., supra, 446 F.2d at 265. As the Fifth Circuit Court of Appeals wrote: "If the agency interpretation is merely one of several reasonable alternatives, it must stand even though it may not appear as reasonable as some other." 446 F.2d at 265.
In Spears v. Colonial Bank of Alabama, 514 So. 2d 814 (Ala.1987), this Court addressed a claim that another automobile dealer and a bank had violated § 5-19-20 in the manner in which they calculated the premiums for credit life insurance. The automobile dealer received 50% of the premium as a commission. The plaintiff in that case claimed that the practice resulted in an excessive premium. There was no viable claim. This Court explained why:
514 So. 2d at 816-17.
Let us examine the documents from the responsible agencies to determine just what the agencies say the statute and the regulation mean. Mr. Robert Floyd, supervisor of the Bureau of Loans for the Banking Department, provided an affidavit that stated the following: That he is the designated deputy administrator responsible for the enforcement of § 5-19-1 et seq. (the "Mini-Code"); that as of the date of the transaction between the McCullars and Regency Chevrolet-Olds, the rules and regulations used by Mr. Floyd in his affidavit were the applicable rules and regulations adopted by the superintendent of banks for the enforcement of the Mini-Code; that the regulations themselves state that they became effective December 1, 1983; and that these rules state that the rules, regulations, and orders of the Alabama State Insurance Department apply to the issuance of all credit life insurance in Alabama.
According to Mr. Floyd, the consistent interpretation of § 5-19-20(a) and the phrase "amount ... of credit" has been, and was at the time of the transaction in question, the "total of payments" on an add-on/precomputed interest credit transaction. In stating this conclusion, Mr. Floyd also referred in his affidavit to an October 31, 1981, memorandum by C.S. Blackledge, the previous supervisor of the Bureau of Loans. He added that this interpretation is consistent with the State of Alabama Insurance Regulation No. 28. He said,
Mr. Floyd examined the face of the sales contract signed by Alan McCullar, the ex-husband of Cindy McCullar, and determined the following: That it is a retail installment sales contract for the purchase of a 1990 Oldsmobile Cierra at a cash price of $14,248.19, reduced by a down-payment of $1,500, leaving an unpaid balance of $12,748.19; that Alan McCullar elected to purchase credit life insurance, for which the premium was $1,037.10 (the figure was actually $1,037.19); that the credit disability insurance premium was $1,306.75 and that after adding these premiums, the amount of credit provided was $15,105.54 according to the sales contract and that after adding the precomputed interest, the total balance due was $20,742.00. Mr. Floyd stated that the credit life insurance premium was calculated based on the total of payments in the amount of $20,742.00. Each of the 60 monthly installment payments was $345.70. Mr. Floyd said:
Mr. Dyer, consulting actuary for the State of Alabama Department of Insurance, stated in his affidavit the following: That he is a *173 person charged with interpreting and applying the insurance statutes and regulations as they relate to the actuarial computations; that regarding § 5-19-20(a): "The State Banking Department has consistently interpreted and enforced the phrase `amount ... of credit' to be the `total of payments' on an add-on/precomputed interest credit transaction [and that the] State Banking Department's interpretation of Section 5-19-20(a), Code of Alabama (Supp.1992), of the Mini-Code is also consistent with the State Department of Insurance Regulation No. 28, Section III(A) and (B)"; that "It is and remains my official opinion, as well as that of the State Insurance Department, that the premium for decreasing term credit life insurance may be written for the total of payments due on add-on/pre-computed interest credit sales transactions in Alabama, and the premium for such insurances is not required to be calculated upon the amount financed or principal amount of a credit sales transaction." He examined the sales contract and saw the disclosures that Mr. Floyd saw. Mr. Dyer said the calculation of the premiums was not a violation of insurance regulations or the Mini-Code's "prohibition against the sale of insurance in excess of `the approximate amount and term of the credit.'"
The C.S. Blackledge memorandum referred to two different conceptsthe amount of insurance initially written and the changing balance as monthly payments are paid. Alan McCullar was sold what is called "decreasing term" credit life insurance; it is called this because the amount of coverage decreased each month by the amount of the monthly payment. Mr. Blackledge's memo helps to clarify the second clause of Section III of Insurance Regulation No. 28, which prohibits the sale of credit life insurance that does not decrease as the periodic payments are made. Therefore, Mr. Blackledge's memo reads, "The total of payments is insured on precomputed contracts with [a rate] based on insuring gross balances that decline by the amount of even periodic or monthly installments." (Emphasis added.) Section III of Regulation 28, upon which Mr. Blackledge was commenting, states: "The amount of group credit life insurance written under one or more certificates ... shall not exceed the original face amount of the specific contracts of indebtedness ...; ... when the indebtedness is repayable in substantially equal installments the amount of insurance shall never exceed the approximate unpaid balance of the loan." (Emphasis added.)[1] The first part of the regulation applies to the amount of insurance initially written. The second clause prohibits the continuation of the amount of insurance at the original face amount, "where the indebtedness is repayable in substantially equal installments." The Blackledge memorandum also distinguishes between an "add-on/precomputed note" and a "simple interest bearing note." For the "add-on/precomputed note," the memorandum confirms that the words of Regulation 28, "approximate unpaid balance of the loan," refer to the "gross balances that decline by the amount of even periodic or monthly installments," i.e., the "total of payments" method of calculation. As for the "simple interest bearing note," the memorandum states that the unpaid balance is "the original principal amount less principal payments applied in accordance with the terms of the note, plus interest accrued on the outstanding balance since date of last payment; it is not the total of the remaining installments." For "add-on/precomputed" notes, one can use the "total of payments" method; for simple interest loans, one cannot. The McCullars' note was an "add-on/precomputed" interest note.
*174 Both the Insurance Department and the Banking Department have written amicus curiae briefs in this appeal. The Insurance Department has confirmed that Mr. Dyer and Mr. Floyd's interpretation of § 5-19-20 and Regulation No. 28 is an accurate statement of the interpretation consistently held by the State of Alabama Department of Insurance. The Banking Department's brief agrees with that of the Insurance Department. The following is a representative statement from the Banking Department:
According to the amicus curiae brief of the Consumer Credit Insurance Association, the National Association of Insurance Commissioners (NAIC) has drafted model legislation regarding credit life insurance. Its membership consists of the insurance regulatory officials of all 50 states, the District of Columbia, and four territories. It provides a clearinghouse for the exchange of information and for assisting these officials in the performance of their duties. Its December 9, 1985, "Report of the Credit Insurance (E) Task Force of the NAIC," printed in 1985 Proceedings of the NAIC, Vol. I, at 804, described the position that it has consistently held:
Therefore, this organization also holds to the interpretation that the "total of payments" method is appropriate and is used widely.
The Mini-Code itself helps us in defining the words "the approximate amount and term of the credit." In § 5-19-20(d), the same section addressed by the plurality opinion, the legislature used very clear wording when referring to the "principal." That section reads:
(Emphasis added.) The legislature knew how to make itself clear when it was referring to principal only, when it used the terms "original amount financed" and "original principal." Those terms are used elsewhere in the Mini-Code, e.g., at §§ 5-19-3 and 5-19-10. "[W]here there is a `material alteration in the language used in the different clauses, it is to be inferred' that the alterations were not inadvertent." House v. Cullman County, 593 So. 2d 69, 75 (Ala.1992), quoting Lehman, Durr & Co. v. Robinson, 59 Ala. 219, 235 (1877). The terms "original amount financed" and "original principal" are clear as to what they describe. If the legislature had intended to refer to the "principal" only, then it would have used the clear wording it used elsewhere. "A text without a context is a pretext" is an excellent rule to *175 follow when interpreting terms and phrases in documents. The context of § 5-19-20 and the entire Mini-Code show that the words "the approximate amount and term of the credit" do not mean the principal only.
The only evidence supplied by Cindy McCullar to contradict the affidavits of Floyd and Dyer was the affidavit of Robert Harrison, a vice-president of Central Bank of the South (now Compass Bank). He is licensed to sell credit life and credit disability insurance, but he has no association with the State of Alabama Banking and Insurance Departments and has no responsibility for interpreting the statutes and regulations. He is essentially a private citizen giving his opinion on the law and regulations of the State of Alabama. The plurality opinion cites his opinion as somehow authoritative in this matter. Mr. Harrison said that, under the regulation, the amount of insurance could "never exceed the approximate unpaid balance of the loan," when the repayment is made in "substantially equal installments." Mr. Harrison defines "the approximate unpaid balance of the loan" as principal only. His definition is different from that of the state agencies charged with interpreting the law and the regulations. Why should a private citizen's opinion have any bearing on this matter at all? This Court has relied upon the interpretation of a self-proclaimed "expert," an "expert" whose interpretation contradicts the interpretation of the agencies charged with interpreting state law and the actual drafting of the regulations that apply that state law.
Even though I am not an expert in finance, I know what can happen if I default on an installment loan related to the purchase of an automobile. The creditor usually can accelerate the payments and require that I pay the entire balance of the loan, including principal, interest earned, and any other charges. It does not matter that the agreement with the lender allows me another three years to pay the note. What if I die the day after the creditor notifies me that it has accelerated my payments because I am in default? The total due and owing to that creditor is the principal and earned interest and any other charges necessary. How much will that amount be? It is impossible to know at the time I purchase the car and borrow the money. What amount should the finance company and the dealership say is the amount of credit life insurance needed? According to the plurality opinion, any amount above principal is fraudulent. Without credit life insurance that covers the entire "total of payments," the beneficiaries of my estate could face the loss of the car if they are unable to make the payment. I would be underinsured. Mr. Harrison said that "[a]t no point would the unpaid balance on the loan exceed $15,108.54." If Alan McCullar had died while in default upon the first month's payment, he would owe interest on that payment plus the entire principal of $15,108.54. See the sales contract, "Additional Terms and Conditions," specifically that portion under the heading "Default," which states that in the event McCullar defaults the creditor can demand immediate payment of "the entire balance of the amount due under the contract, including interest and other charges, plus any other debt" McCullar had with the creditor. "Default" in the sales contract is defined as failing to make one installment payment when due. Mr. Harrison's statement is therefore incorrect.
I must agree with this statement in the defendants' brief on application for rehearing:
The Insurance Department has interpreted the "phrase `amount ... of credit' to mean the `total of payments' on an `add-on/precomputed *176 interest' credit transaction." (Plurality opinion, 687 So. 2d 172.) This Court, in the past, has recognized that the Mini-Code provides for and permits add-on/precomputed interest loans and installment contracts. See Centennial Assocs., Ltd. v. Clark, 384 So. 2d 616, 617 (Ala.1980). Why do we now suddenly change that position, with no explanation?
The plurality opinion recites the law that states that "[t]he interpretation placed on a statute by the executive or administrative agency charged with its enforcement is given great weight and deference by a reviewing court." 687 So. 2d at 163. This should be particularly true where, as here, "the long-standing interpretation has controlled how the public has conducted its business." City of Birmingham v. AmSouth Bank, N.A., 591 So. 2d 473, 477 (Ala.1991). The rationale underlying this deference to administrative agencies is that the agencies, not the courts, possess "specialized competence in the field of operation entrusted to [them] by the legislature." Hamrick v. Alabama Alcoholic Beverage Control Bd., 628 So. 2d 632, 633 (Ala.Civ.App.1993), quoting Alabama Dep't of Public Health v. Perkins, 469 So. 2d 651, 652-53 (Ala.Civ.App.1985). Furthermore, it is undisputed that the defendants, as well as the lending and credit insurance industries in general, have justifiably relied on this long-standing administrative interpretation for decades. Stallworth v. Hicks, 434 So. 2d 229, 230-31 (Ala.1983). However, the plurality opinion gives no weight to the interpretation of the statute by the administrative agencies charged with its administration and enforcement. Instead, the plurality opinion seems to give more weight to the testimony of Robert Harrison, a Compass Bank vice-president.
The Alabama legislature has amended the Alabama Mini-Code on several occasions since the Banking Department and the Department of Insurance initially issued their interpretations of § 5-19-20(a). At no time has the legislature altered those interpretations. These amendments, "without change, of a statute which has been given a uniform construction by the administrative department `may be treated as a legislative approval of the departmental construction of the statute, quite as persuasive as the re-enactment of a statute, which has been judicially construed.'" State v. Southern Elec. Generating Co., 274 Ala. 668, 670, 151 So. 2d 216, 217 (1963), quoting State v. Birmingham Rail & Locomotive Co., 259 Ala. 443, 66 So. 2d 884 (1953). The legislature is deemed to have given approval to the long-standing administrative interpretation of a statute. Therefore, this Court should not "usurp the role of the legislature ... and amend statutes under the guise of construction." Honeycutt v. Employees' Retirement System of Alabama, 431 So. 2d 961, 964 (Ala.1983). This Court has stated:
State v. Friedkin, 244 Ala. 494, 497, 14 So. 2d 363, 365 (1943). That quote perfectly describes the history of the law of Alabama with respect to credit life insurance.
In interpreting the Insurance Regulations, this Court should look to the intent of the drafters of the regulations. Personnel Board of Jefferson County v. Bailey, 475 So. 2d 863 (Ala.Civ.App.1985) (substantial deference should be given to an agency's interpretation of its own rules and regulations); see also Parker v. Bowen, 788 F.2d 1512, on remand, 793 F.2d 1177, on remand, Hand v. Bowen, 793 F.2d 275 (11th Cir.1986) (an agency's interpretation of its own regulations is entitled to deference and is controlling unless it is plainly erroneous or inconsistent with the language and purposes of the regulation).
Furthermore, "a court, whenever possible, should avoid a construction of a regulation that would raise doubt as to the regulation's validity or hinder its ability to make its statutory authority operative." Newsome v. Trans Int'l Airlines, 492 So. 2d 592, 596 *177 (Ala.), cert. denied, 479 U.S. 950, 107 S. Ct. 436, 93 L. Ed. 2d 386 (1986).
And, finally:
Alabama Medicaid Agency v. Beverly Enterprises, 521 So. 2d 1329, 1332 (Ala.Civ.App. 1987) (citation omitted) (emphasis added); see also Alabama Precast Products, Inc. v. State, Department of Revenue, 332 So. 2d 160 (Ala.Civ.App.), cert. denied, 332 So. 2d 164 (Ala.1976) (courts, in construing regulations, must look to the plain meaning of the provisions).
The drafter of the Department of Insurance Regulations is the Department of Insurance. Therefore, if this Court seeks to find the interpretation of a portion of Regulation No. 28, it should look to the drafter of the regulationthe Department of Insurance. Bailey, 475 So. 2d 863.
The Department of Insurance made it simple and clear for this Court when it filed an amicus brief stating its interpretation of Regulation No. 28. The regulation allows use of the "total of payments" method for calculating the amount of insurance needed. The Department of Insurance wrote Regulation No. 28; therefore, its interpretation of that regulation is controlling, unless it is plainly erroneous or inconsistent with the language and purposes of the regulation. Bowen, 788 F.2d 1512. Mr. Robert Harrison did not draft and promulgate Regulation No. 28. Therefore, I must ask why does the plurality adopt his view as to the intent and meaning of the regulation, when the Department of Insurance, the drafter of the regulation, has specifically told this Court its meaning?
Furthermore, if the authority of the Insurance Department's interpretation was not enough, the American Council of Life Insurance ("American Council"), the Consumer Credit Insurance Association ("Consumer Credit"), and the Alabama State Banking Department ("Banking Department") all agree with and validate that interpretation. They all contend that the Alabama Code and Department of Insurance Regulations authorize creditors to base the amount of credit life insurance upon the amount of indebtedness, which includes principal and interest, the "total of payments." This Court has received amicus briefs from national and state governmental agencies and private organizations who are experts in the complex insurance industry. Nevertheless, the plurality disregards the positions of those expert groups and adopts the lay interpretation of Mr. Harrison.
Who is at risk in the credit sale of an automobile? Both the seller and the buyer. The seller risks the possibility of default by the buyer. Perhaps the seller will have to repossess the car, and if the buyer is bankrupt then the seller still probably will not be able to cover the repossession expenses or the unmade payments. What if the buyer dies? Will his estate be able to cover all the car payments? If not, the seller loses because of the costs of repossession. If the seller believes the risk for these possible events is too great, then sales to people with higher credit risks will cease, or the interest rate will rise. Therefore, the seller can protect himself, but those people will not be able to purchase automobiles. For some, life without an automobile means no transportation to work and therefore no means of support. The car has become an essential item for many people. Credit life insurance is the only way some people can afford to purchase a car.
Apparently, Alan McCullar's sense of security was enhanced by choosing to pay the extra expense for premiums for the credit life and credit disability insurance. Not only is the seller's risk lowered by credit life insurance, but so is the buyer's risk. If the seller felt that only the principal was covered by the credit life insurance, there would be a need to raise the interest rate charged for loans to purchase the seller's cars. The risk factor would have increased. Therefore, the *178 interest rate would also have to increase. Are there not other costs besides interest that the seller has to take into account? If a buyer dies, interest accrues from the time of the last payment. How much will that be? Not much, but no one knows at the point of sale exactly how much will accumulate. No one knows when or if a buyer will die. No one knows for sure what other charges may accrue and be necessary to cover a loss if someone dies, e.g., charges related to default.
Therefore, in order for sellers to ensure that their risk is lowered to the optimal point for serving their customers, they want credit life insurance that covers the entire "total of payments" owed. In order for buyers to have the greatest sense of security for themselves and their heirs (and in some cases for them to even afford to buy a car), they purchase credit life insurance that covers the "total of payments" owed. The risk for both the buyer and the seller is lowered to its optimal point. It is a contractual agreement that benefits both parties. It is not fraud.
Even McCullar would have to admit that there will be times when a payoff of the principal alone will not cover the entire debt of the insured. When an insured dies after a monthly payment has been made, there is at least an amount of earned interest from the date the last payment was applied until the date the loan is paid off. It may be a small amount, but it is an amount above the principal. The truth is that that situation will be the usual situation. In order for insurers to fully cover an insured, what amount do they use? The principal plus a little extra for the deficiency that may develop? How much extra? Even a penny over the principal amount would place the insurer in violation of § 5-19-20 as it is interpreted by the plurality of this Court. The plurality opinion would certainly place these insurers in a catch-22. Insuring only the principal amount would almost always mean underinsuring the debtor, and thereby subjecting the insurer to potential loss. And, if the insurer tries to cover any amount above the principal, it violates § 5-19-20 and is thereby subject to liability.
Also, it is important to understand the workings of credit disability insurance. Part of Cindy McCullar's claim involves credit disability insurance. If the buyer becomes disabled and unable to make payments, the credit disability insurance does not pay off the balance. It merely begins to make the payments for the buyer during the disability. If the credit disability insurance covered only the principal, then each month the buyer would have to make up the shortfall between the principal and the interest. This is a result that the buyer would not have anticipated when purchasing credit disability insurance. The buyer wants to have the total payment covered by the insurance. Anything less and the buyer can sue for being underinsured. Although the plurality states that its decision will have no effect on credit disability insurance, that statement does not resolve the issue for those offering credit disability insurance in future cases in which a court is asked to interpret the statute. Because § 5-19-20(a) also applies to credit disability insurance, I do not see how defendants in cases involving credit disability insurance could avoid the application of this same restrictive interpretation of the statute. It places the insurer and the retailer that offers credit disability insurance between a rock and a hard place.
If, in fact, the seller overestimated the need for the insurance, then, in the event of death, the insurance policy clearly provides for payment of the excess to the secondary beneficiary named by the buyer/insured (the primary beneficiary being the finance company). If there is no secondary beneficiary, then the excess is paid to the buyer/insured's estate. The credit life insurance policy issued by Universal Underwriters, and to which the McCullars agreed to be bound, states: "Claim payments are made to the Creditor named in the borrower's group certificate schedule to pay off or reduce the debt. If claim payments are more than the balance of the debt, the difference will be paid to the Second Beneficiary, if any. Otherwise, payment will be made to the Insured's estate."
In such an arrangement, the buyer loses nothing. If Cindy McCullar disagrees with *179 the accounting method used to calculate the amount of insurance needed, then that is all we have herea disagreement over an accounting method. Regency, as the primary beneficiary, wanted the best coverage. However, there are other alternatives. Alan McCullar could have obtained a loan from a bank and could have purchased credit insurance through the bank if he thought he could get a better deal. He could have chosen not to purchase the credit life insurance at all. His ex-wife may not come into court after she has defaulted on the sales contract and charge Regency and Universal with fraud. This Court should not say that a disagreement over two legitimate methods of accounting means that there exists a genuine issue of material fact regarding a fraud claim.
At worst, credit life insurance is expensive. But even that is understandable in light of the fact that it has minimal underwriting requirements. A person applying for credit life insurance obtains it automatically at the time of sale. There is no need for a physical examination or a lengthy application process, and even the overweight person who smokes heavily and has a family history of cancer and heart disease will be approved for the insurance. Alabama Department of Insurance Regulations and the law of Alabama cap the premium even for the most unfit applicant at $1.60 per $100 coverage per annum. Expensiveness is not the determinative factor when one is checking for fraud. This is a free country. If the McCullars thought they were paying too much for this particular insurance, they were under no compulsion to purchase a car at Regency Chevrolet-Olds. Even after they chose to purchase a car from Regency, they could have obtained credit life insurance elsewhere, and perhaps at a lower premium.
If Regency and Universal used the "total of payments" method to sell credit life insurance and that method was acceptable to the state agencies charged with regulating them, then Cindy McCullar should not be allowed to challenge that method after the fact any more than the buyer of a Cadillac should be allowed to claim he or she was defrauded because they could have purchased a Volkswagen at a much lower pricethat all they needed was some transportation, and not all the fancy items that came with the Cadillac. The buyer can perhaps claim to have been overcharged; the buyer should not be allowed to allege fraud simply because the Cadillac was more expensive. The "total of payments" principle reduces the risk of both the buyer and the seller to the lowest point possible.
If the buyer falls behind in payments and then dies, insurance that covers only the principal will be insufficient to pay off the full indebtedness. The problem of having too little insurance is actually more serious for both parties than that of having too much. There exists precedent for Universal Underwriters to be sued for supplying too little insurance. In Applin v. Consumers Life Insurance Co. of North Carolina, 623 So. 2d 1094 (Ala.1993), overruled by Boswell v. Liberty National Life Ins. Co., 643 So. 2d 580, 582 (Ala.1994), this Court upheld the dismissal of an action for failure to state a claim. In that case, there was no damage because the plaintiff Applin had never filed a claim; further, the fraud allegation was not pleaded with particularity. Boswell, 643 So. 2d at 582, overruled Applin on one issue. Boswell held that damage can occur to an insured even if the insured does not file a claim on the policy. In Applin, the plaintiff alleged that "he paid for, but did not receive, an amount of coverage equal to the balance due on the note." Applin, 623 So. 2d at 1098. Interestingly, in that opinion this Court defined the term "amount financed." This Court said, "`amount financed,' however, ordinarily includes the total amount payable in principal and interest over the term of the loan." Id. at 1098.
If Alan McCullar had agreed to a simple interest loan, then Cindy McCullar may have a valid claim because the rule under Regulation No. 28 is different for the simple interest loan. The amicus curiae brief filed by the Automobile Association of Alabama gives a good discussion of the difference between the simple interest loan and the add-on/precomputed *180 interest loan. In a precomputed interest transaction, the debtor agrees to pay the principal and a fixed amount of interest, but in a simple interest loan the debtor agrees to pay the principal and a fixed rate of interest. The difference between the use of the terms "rate" for simple interest loans and "amount" for precomputed interest loans is great. In a simple interest loan, the interest is calculated at the agreed-upon rate on the outstanding balance every time a payment is due. As the principal balance of the obligation is reduced, the dollar amount of interest likewise declines. See Ala.Code 1975, § 5-19-3(f)(1). In the simple interest loan, most of the interest is paid by the borrower in the earlier payments.
In an add-on/precomputed interest type loan, the total amount of interest to which the creditor would be entitled over the life of the loan is calculated at the time the loan is made and is then added to the principal balance. See Ala.Code 1975, § 5-19-3(b). The add-on/precomputed interest loan makes recordkeeping simpler because all the interest due is calculated at the beginning of the transaction and then spread equally over the life of the loan. There is no need to calculate interest every time a payment is scheduled or actually made. The amount of insurance does not decline with each payment. It declines by the amount of the scheduled payment each month whether a payment is made or not. If the buyer has not paid some of the monthly payments, then the excess coverage helps the buyer pay that. If the buyer pays the obligation as and when the payments are due, a surplus in insurance coverage may result if the buyer dies during the term of the credit. In this instance, the insurance proceeds over and above what is required to pay off the debt in full are remitted either to a beneficiary designated by the consumer or to the estate. Universal Underwriters was contractually obligated to pay the full amount of the policy if Alan McCullar had died the day after the credit sale occurred. That is, Universal would have paid to the creditor the full amount of the installment contract plus earned interest, and the excess insurance would be paid to the person designated by Alan McCullar as the secondary beneficiary under the policy.
In addition, as pointed out in the amicus brief filed by the American Council of Life Insurance, until recently lenders did not have the capability to make the daily calculations necessary to monitor the actual payoff amount of a loan. Today, only the largest and most sophisticated lenders have the computer capability to calculate credit insurance premiums on the monthly outstanding balance of all of their loan accounts. Such companies can know at any given time what amount is necessary to pay off the loan, and they can charge a premium that changes monthly based on whether and when the monthly payment was made. Community banks, automobile dealers, and other small financial institutions do not have this capability. In order to provide the most safety to buyers, who do not want their families burdened with an automobile debt after their loved one has died, the insurer insures for the "total of payments." That is the best, but even then not a foolproof, way to ensure there is no shortfall. Anything less would not be serving the buyer/debtor. Even in the case of "total of payments" type insurance, the insurance may not be enough to pay off the debt in full. In the event the consumer is delinquent in payments, there is a risk of underinsurance. The amount of insurance declines with each scheduled payment, whether or not a payment is made. When a consumer is in serious arrears at the time of his death, the insurance may not pay the debt in full. By saying that the "approximate unpaid balance of the loan" excludes interest, the plurality opinion has ensured that the insurance will never be enough to pay off an add-on/precomputed interest debt, even if the customer is current on all payments. The key difference between a simple interest loan and an add-on/precomputed interest loan is that the interest in the latter is fixed. In the add-on/precomputed interest loan, the insured agrees to pay the total of payments, which includes interest over the life of the loan. The plurality opinion seems to have blurred the distinction between these two types of loans.
This distinction between "simple" interest loans and "add-on/precomputed" interest loans has been accepted as part of Alabama *181 law for a long time. Section 5-19-3(b) states:
Section 5-19-3(f) indicates that the simple interest contract does not involve "adding on" to the original principal at the inception of the loan:
In contrast, the finance charge in an "add-on/precomputed" contract is "added on" at the beginning of the loan, not recomputed every payment. This concept was accepted by this very Court as early as 1980. In Centennial Associates, Ltd. v. Clark, 384 So. 2d 616 (Ala.1980), this Court said,
384 So. 2d at 617.
Therefore, McCullar has made no showing that the "amount" of credit life insurance Regency issued was excessive. The amount insured was exactly what was needed for this type of loan. McCullar has failed to show a misrepresentation of any fact or that she relied on any misrepresentation to cause her damage of any kind. At best, she has shown that she agreed to credit life insurance that, in the event of death, would have paid off the loan on her car and then paid her secondary beneficiary any excess that may have existed after such payment. The loan contract did not conceal the amount that the credit life insurance covered. It did not conceal the amount of her premium. It did not underinsure her. And it did not overinsure her. Thus, she simply has no claim.
The overwhelming majority of the states of this country (at least 42) allow for the "total of payments" method of calculating the amount of insurance needed.[2] See Appendix, LIST OF STATES' POSITIONS ON CREDIT LIFE INSURANCE RATES.
Not only have most other states affirmed the legitimacy of the "total of payments" method of calculating the amount of credit life insurance needed, so has the Uniform Consumer Credit Code (UCCC), the Code upon which much of the Alabama Mini-Code was based. UCCC § 1.301(33) states: "`Precomputed consumer credit transaction' means a consumer credit transaction ... in which the debt is a sum comprising the amount financed and the amount of the finance charge computed in advance." Uniform Consumer Credit Code, 7A U.L.A. 48 (Supp.1994). UCCC § 4.202(1)(a) states: "[I]n the case of consumer credit insurance *182 providing life coverage, the amount of insurance may not initially exceed the debt and, if the debt is payable in instalments, may not exceed at any time the greater of the scheduled or actual amount of the debt...." Uniform Consumer Credit Code, 7A U.L.A. 151 (Supp.1994).
I have also searched through the opinions of the courts throughout the entire country and have failed to find any court that construes the activity alleged in this complaint as fraud. Those cases I have found that come closest to involving fraud in the sale of credit life insurance are cases dealing with a purchaser's being underinsured, i.e., cases in which the insurance company provided coverage insufficient to cover the purchaser's debt. See Ex parte Serra Chevrolet, Inc., 674 So. 2d 522 (Ala.1995); Barnes v. Holliday, [Ms. 09 26 95, June 6, 1990], 1990 WL 269884 (Conn.Super.1990) (unpublished); Pocatello Railroad Employees Federal Credit Union v. Galloway, 117 Idaho 739, 791 P.2d 1318 (Idaho App.1990); Marshall v. Citicorp Mortgage Inc., 601 So. 2d 669 (La.App.1992); Gulfco Finance Co. v. King, 542 So. 2d 801 (La.App. 1989), judgment vacated, 552 So. 2d 1199 (La. 1989); Monroe Medical Clinic, Inc. v. Hospital Corp. of America, 622 So. 2d 760 (La.App. 1993), cert. denied, 629 So. 2d 1135 (La.1993); Bank of New Orleans & Trust Co. v. Phillips, 415 So. 2d 973 (La.App.1982); Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686 (Mo.App.1973); Carr v. Charter National Life Insurance Co., 22 Ohio St.3d 11, 488 N.E.2d 199 (1986); Hoovestol v. Security State Bank of New Salem, 479 N.W.2d 854 (N.D.1992); Knox v. Finance America Corp., [Ms. No. C.A. 931, June 7, 1990], 1990 WL 74403 (Tenn.App.1990) (unpublished); O.R. Mitchell Motors, Inc. v. Joe Marotta & Sons, Inc., 358 S.W.2d 741 (Tex.Civ.App. 1962). Of course, these cases present an issue that is entirely opposite to the issue involved in McCullar's claim that Universal Underwriters overinsured her. If Regency and Universal had not insured the McCullars for the "total of payments" on the car loan, then the loan contract would have had to carry a disclaimer to the effect that the credit life insurance being purchased may not be sufficient to pay off the loan on the car in the event of death of the insured. And even then, my research indicates, they could still be sued for underinsuring the purchaser.
Construing the statute in the light most favorable to the plaintiff, I conclude that the Alabama statute at issue§ 5-19-20may be considered ambiguous. The Alabama Trial Lawyers Association in its amicus argument before this Court even admitted that there was ambiguity in the statute.[3]
Everything said thus far demonstrates one very important principle. That principle, *183 recognized in criminal cases and civil damages cases, is the following: "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose." BMW of North America v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). In footnote 19 of Gore, the United States Supreme Court quoted Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978): "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort...." This statement was made in the context of a criminal defendant's exercising his legal rights without fear of retaliation. The principle, however, is the same. Universal Underwriters and Regency Chevrolet-Olds are not criminal defendants, but they are facing the potential of civil punishment for actions they understood to be legitimate and legal. They understood their actions to be legal, based on the Alabama statute, the Alabama regulatory agencies, and the laws and practices of a majority of the states of this country.
Before the release of the first opinion in this case on September 29, 1995, potentially huge lawsuits were already filed against companies that have conducted thousands of transactions that as of September 29, 1995, all members of the finance and insurance industries thought were perfectly legal. The opinion of this Court is made worse by the fact that the decision will not apply prospectively only, but retroactively. Therefore, the lawsuit floodgates have been opened wide. The potential damage to the Alabama economy is beyond estimate. A constitutional case might rise from this opinion over the implications attendant to exposing business to massive liability for actions taken in reliance on the regulations and statutory interpretations of state agencies.
This new construction of § 5-19-20(a)a complete departure from the long-standing administrative construction of this provision of the Mini-Codeshould be applied prospectively only. The result of retroactivity will be massive litigation and massive liabilityliability so great that it could destroy much of the consumer credit and insurance industry in Alabama. If this opinion is allowed retroactive application as to already-filed cases, then any consumer who has obtained a precomputed interest credit life insurance loanand there could be literally hundreds of thousands of potential litigantscould join a class action lawsuit and sue his or her consumer lender, retailer, and insurance company, despite those companies' strict compliance with every statute, rule, or policy governing these transactions for approximately 25 years. Such class actions have already been filed throughout the State of Alabama, and more will be filed after the release of today's opinion. The potential exposure of these consumer lenders, retailers, and insurance companiesevery bank, every thrift, every life insurer, every automobile or appliance dealer, every furniture storeis virtually limitless. Small lenders could be wiped out. Customers that have used such small lenders would have to turn to pawn brokers or possibly even underworld figures, rather than the licensed and regulated small lenders who have served these people for so long. These are precisely the predictable consequencesthe impairment of existing contractual and property rights entered in reasonable reliance on an established statutory constructionthat the doctrine of prospectivity is intended to prevent.
The principle of prospective application of judicial decisions was extended to judicial construction of statutes in Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1891). Because the judicial construction of a statute effectively becomes part of the statute, the Court held that a change in statutory construction should affect existing contractual rights in the same manner as do statutory amendmentsby prospective application only. Farrior, 92 Ala. at 179-80, 9 So. at 532-33. In State v. Morrison Cafeterias Consol., Inc., 487 So. 2d 898 (Ala.1985), this Court determined that the decision should act prospectively only, even with respect to the appellee:
487 So. 2d at 903 (emphasis added). This Court has, from the 1800's until today, repeatedly held that a statutory construction that departs from a previous construction should be applied prospectively only. See Burke v. State, 385 So. 2d 648, 652 (Ala.1980). The rule of prospectivity has been applied without exception when rules governing contractual or property rights that have become vested in reliance upon a settled construction are later overturned.
The legislature itself has expressed its opinion on the matter of prospectivity. In findings expressed in 1994 Ala. Acts, Act No. 94-115, § 1, the legislature stated that changes in interpretations of the Mini-Code must be carefully considered because it "appl[ies] to substantially all consumer credit transactions in Alabama involving many millions of dollars ...," because the "public interest requires certainty in laws relating to consumer credit transactions," and because "uncertainty could result in a significant reduction in the amount of consumer credit available to Alabama residents and thereby have a detrimental effect upon Alabama residents and businesses." The legislature further said that "it is essential that ... [changes in the Mini-Code] ... be carefully considered, specifically stated, and prospective in application." 1994 Ala. Acts, No. 94-115, § 1(5).
All of the factors that have impelled prospective application of new rules, whether in Alabama or in other jurisdictions, are present here. The new rule in this case has not yet been applied to the litigants in this or in other cases. A long line of Alabama precedent favors prospective application in circumstances such as those here, when an entire industry has based its practices on an existing statutory interpretation, when vested contractual rights are pervasive, and when retroactive application will create staggering losses that, in equity, need not occur. The cases cited by the appellant as supporting retroactive application of a judicial decision refer only to cases where it appears "reasonably certain" that the administrative agency has erroneously interpreted the statute in question. Sand Mountain Bank v. Albertville National Bank, 442 So. 2d 13 (Ala.1983); Penrod v. Lapere, 367 So. 2d 1381 (Ala.1979) (latest administrative interpretation even agreed with this Court's holding); Boswell v. Abex Corp., 294 Ala. 334, 317 So. 2d 317, 318 (1975); Britnell v. Alabama State Board of Education, 386 So. 2d 1148, 1150 (Ala.Civ. App.1980); Director, Dep't of Ind. Rel. v. Winston County Comm'n, 468 So. 2d 177, 181 (Ala.Civ.App.1985). It is not reasonably certain that such an erroneous interpretation is present in this case. As for the United States Supreme Court cases cited by McCullar, they do not support retroactive application of the new rule in this case. The United States Supreme Court's rules on this issue are the rules for that Court. They do not bind Alabama unless Alabama is deciding a federal question. Those cases do support the proposition that if the new rule is applied retroactively to some parties, it should be applied retroactively to all parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991); Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993). A careful reading of these two cases shows that prospectivity was not eliminated in every case heard by the United States Supreme Court.
What about other types of credit insurance? This ruling will affect credit accident and health insurance, involuntary unemployment *185 insurance, and credit property insurance. All these types of insurance call for the insurer to "step into the buyer's shoes" and take over the car payments if the buyer gets hurt in an accident, gets sick, or loses a job. Property insurance covers the property used as collateral for a loan. Often, the value of the property pledged exceeds the amount of the debt. If the property is destroyed or lost and the insurance covers only the principal amount of the loan obligation, then the insured is assured of a financial loss. Therefore, interpreting § 5-19-20's phrase "approximate amount ... of credit" as referring only to the principal ensures that purchasers of several types of insurance will not be receiving coverage of the entire amount needed.
Are there other indirect effects of this decision? The law must have predictability so that individuals and corporations may have "confidence in the law's reasonable certainty, stability, and consistency." Stallworth, supra, 434 So. 2d at 230 (quoting Bibb v. Bibb, 79 Ala. 437, 444 (1885)). What does today's decision say to the people of Alabama? It says, "You can be liable for fraud no matter what you do in your business. It is irrelevant that you are utilizing an acceptable business practice, one that has been used for decades, one that has been used around the country, one that everyone else in your line of business has used. It may even be a practice that has been approved by the state agencies charged with administering the type of business you are involved in. None of that matters. You may still be liable for fraud." This is a frightening proposition. Beyond the effects of this one case on the credit life insurance industry, such a precedent as this destroys the people's ability to rely on any law, regulation, or branch of state government. The effects are insidious. Like termites eating away at the foundation and structure of a house, one never sees the effects of their work until it manifests in damage to the support and foundation of the house. This decision eats away at the house of justice of Alabama, the destruction being hidden from view until it manifests in bankrupt businesses, lost opportunities and jobs, and the lawless distrust bred by inconsistent and unpredictable decisions of those appointed by the people to guard the justice system. Then, everyone asks, "Why is there so little opportunity in Alabama? Why is there so much fraud? Why is there so much mistrust of the judicial system?" This case will help a limited number of fortunate lawyers get rich; it will not stop any fraud in the State of Alabama. It only allows for predatory attacks on legitimate businesses. Class actions are already forming across the state. The termites are swarming.
The McCullars entered into this loan contract on May 28, 1990. Cindy McCullar filed this action on May 7, 1993, after she had defaulted on the loan and surrendered the car to AmSouth Bank. When she entered into this agreement, she had all the facts she needed to discover fraud, if there was any. Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458, 463 (Ala.1991); Applin v. Consumers Life Insurance Co. of North Carolina, 623 So. 2d 1094 (Ala.1993), overruled on other grounds by Boswell v. Liberty National Life Ins. Co., 643 So. 2d 580, 582 (Ala. 1994). These cases support the defendants' claim that under the two-year statute of limitations of § 6-2-3 her claim was time-barred. I would also add that at the time Cindy McCullar surrendered the car to AmSouth Bank, she received a refund of the unearned premium for the credit life insurance in accordance with the refund provision of her credit life policy.
I agree with one portion of the plurality's opinion. There is no need for any further discovery in this case. The question of the legality and legitimacy of the "total of payments" method of computing the amount of credit life insurance was conclusively settled by the affidavits of Mr. Floyd and Mr. Dyer and the C.S. Blackledge memorandum. That was a legal question requiring no cross-examination. The policy of the Banking and Insurance Departments has been consistent since 1981 and before. A 1986 case involving the identical allegations was decided by Judge Cherner based upon the affidavit of Mr. Floyd. The plaintiff can show nothing, *186 and there is nothing that can be brought out upon cross-examination of Floyd and Dyer, that would assist the plaintiff's search for facts helpful to her case. The facts as alleged by the plaintiff are the facts assumed by Dyer and Floyd in preparing their affidavits. Their affidavits were not "fact" affidavits; they were statements of policy of the two departments that they represent. When asked how further discovery would change the interpretations of the statute and the regulation by the two state departments responsible, counsel for the plaintiff simply claimed that the agencies'"application of the law to the facts" was "ludicrous." There is no need to send this case back for further discovery. The trial judge properly entered a summary judgment for the defendant. We should affirm that summary judgment. Alternatively, and at a minimum, this Court should state that its interpretation of § 5-19-20 is prospective only and has no effect on any business that has been operating with the understanding that this practice was legitimate and in accordance with the rules and regulations of the state agencies charged with enforcing that statute. Therefore, I must concur with the plurality opinion in regard to McCullar's claim for further discovery, but I heartily dissent from the plurality opinion's holding as fraud the "total of payments" method of computing credit life insurance.
In this list, the use of the word "disputed" indicates that there is a dispute between the defendants' brief and the Alabama Trial Lawyers Association's amicus curiae brief filed on behalf of the plaintiff. The dispute concerns what type of computation a particular state allows an insurance company to use to determine the amount of credit life insurance needed by a purchaser/debtor. That is, does it allow the "total of payments" method? This research takes into account the fact that the alleged misconduct in this case occurred in 1990. Therefore, the quotes from some states' statutes and regulations do not reflect the most current statutes for those states.
The following list is based on my research into that question as to each state.
ALASKADisputed. Alaska Code § 21.57.040(a) (current as of 1994) limits credit life insurance as follows: "The initial amount of credit life insurance may not exceed the total amount repayable under the contract of indebtedness and, if an indebtedness is repayable in substantially equal installments, the amount of insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater...." Compare this subparagraph with subparagraph (b), and you see that total of payments is within the meaning of the "unpaid indebtedness."
Subparagraph (b) clearly refers to a "total of payments" method of calculation. This statute does not exclude the "total of payments" method of calculating the amount of insurance needed.
ARIZONADisputed. Arizona Code § 20-1605A. & B. (1961, amended in 1982, current as of 1995):
As you read the different statutes and rules of the states, you will notice a striking resemblance, as in Arizona's case, to the language of Alabama Department of Insurance
Regulation No. 28. Instead of the words used by Alabama, "approximate unpaid balance of the loan," Arizona uses the words "the scheduled or actual amount of unpaid indebtedness, whichever is greater." Most states that use this language allow for the "total of payments" method. Arizona Code § 20-1606 (1961, current as of 1995) states that credit disability insurance "shall exceed neither the aggregate of the periodic scheduled unpaid installments of the indebtedness" and that "[t]he amount of the periodic indemnity payment shall not exceed the original indebtedness divided by the number of periodic installments." Arizona Administrative Code R20-6-604 (current through Sept. 30, 1995) defines "outstanding indebtedness" as "the amount borrowed by the debtor plus any unearned interest or finance charge." R20-6-604.C.3. takes into account excess insurance: "Whenever the amount of insurance may exceed the unpaid indebtedness such excess shall be paid to a beneficiary, other than the creditor, named by the debtor, or to the debtor's estate." Arizona Administrative Code, R20-6-604.C.12., deals with the question whether the insured pays for a "net" or a "gross" coverage. Which is purchased is the insured's choice. Clearly, the "total of payments" method, which includes interest, is allowed. See Huskie v. Ames Brothers Motor & Supply Co., 139 Ariz. 396, 678 P.2d 977 (1984).
ARKANSASDisputed. Arkansas Code § 23-87-108(a) (current as of 1995) states: "The amount of credit life insurance shall not exceed the original amount of the indebtedness." (No reference is made to equal-installment type contracts.) Section 23-87-108 provides that credit disability insurance "shall not exceed the aggregate of the periodic scheduled installments of indebtedness and shall not exceed the original indebtedness divided by the number of periodic installments." Arkansas Regulation 12, paragraph 6, states that the insurer may request of the Insurance Commissioner a waiver if the insurer wants to charge a different rate of premium per $1,000. Arkansas does not prohibit the "total of payments" method.
One Arkansas case stated that the term "indebtedness" in Ark. Stats. §§ 66-3804(5), 66-3806(1) included not only the principal, but also all amounts payable by the borrower in connection with the loan, e.g., interest and the credit life insurance premium. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559, cert. den., 449 U.S. 880, 101 S. Ct. 230, 66 L. Ed. 2d 104 (1980); see also Poole v. Bates, 257 Ark. 764, 520 S.W.2d 273 (1975).
CALIFORNIAThe defense does not claim California uses "total of payments." However, California Administrative Code § 2248.7 states that that subsection is violated if the insurer "provides an amount of insurance less than the amount necessary to discharge the indebtedness, when it does not set forth clearly such information on the insured debtor's policy or certificate in bold print or in other prominent method." Obviously, the concern in that section is "underinsurance." California Insurance Code § 779.2 defines "indebtedness" as "the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." Arguably, California allows for the "total of payments" method.
COLORADODisputed. Colorado Code § 5-4-202(1)(a) (1963, current as of 1995) provides that the amount of credit life insurance "may not initially exceed debt and, if the debt is payable in instalments, may not at any time exceed the greater of the scheduled or actual amount of the debt...." Section 10-10-103 (current through all 1995 First Regular Session laws) defines indebtedness as "the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." Colorado, like California, appears to be more concerned with too little coverage. Administrative Code of Insurance § 4-9-2.A. (current with amendments received August 30, 1995) states:
Colorado does not prohibit the "total of payments" method.
CONNECTICUTDisputed. Connecticut Code § 38a-648(a) (1991; current through end of 1994 Nov. Spec. Sess.) provides that the total of credit life insurance "shall not exceed the initial indebtedness." Further, "[w]here an indebtedness repayable in substantially equal instalments is secured by an individual policy of credit life insurance, the amount of insurance shall at no time exceed the scheduled amount of indebtedness and, where secured by a group policy of credit life insurance, shall at no time exceed the amount of unpaid indebtedness." The greater concern is with the sufficiency of the insurance, not the excess. Section 36a-565 (current through end of 1995 October Special Session) states: "In the case of credit life insurance, the amount of the insurance shall be sufficient to pay the total balance of the loan due on the date of the insured's death." Connecticut allows the "total of payments" method.
DELAWAREDisputed. Delaware Code § 3704(a)(1) and (2) (1953, current as of 1994) limit the amount of credit life insurance to no more than the "initial indebtedness" or, where an indebtedness is repayable in substantially equal installments, "the scheduled or actual amount of unpaid indebtedness, whichever is greater." The "scheduled ... amount of indebtedness" would refer to the total of payments left in the case of an addon/precomputed interest note.
District of ColumbiaThe defense does not contend the District of Columbia uses "total of payments." And no wonder. D.C.Admin.Reg. title 16, § 325 (current with
amendments received through December 6, 1995) uses a special term of art that other jurisdictions allowing "total of payments" do not use. It states: "The amount of credit life insurance shall not, at any time, exceed the greater of the scheduled or actual unpaid `TIME PRICE BALANCE.'" While I am not sure of the meaning of the term "time price balance," it appears reasonable that if the District prohibits the "total of payments" method, it would need to distinguish that rule from other jurisdictions that allow it.
FLORIDABoth sides in this case agree that Florida uses the "total of payments" method. The language of its statute is very close to that of the Alabama statute. Florida Code § 627.679(1)(a) (current as of 1996), reads as follows:
(Emphasis added.) Florida uses the words "total of the payments."
GEORGIADisputed. Georgia Code § 33-31-4(a) (1978, current as of 1995) limits the amount of credit life insurance to the amount of "indebtedness." It states:
Georgia law provides a remedy for the insurance coverage being more than that needed to cover the outstanding insured loan balance. Such excess insurance is to be paid to the beneficiary named by the borrower, someone other than the creditor, or to the borrower's estate. Therefore, Georgia
contemplates an excess. See Georgia Regulations 12-1-11-.01(c) and 120-2-27-.09 (current with amendments received through January 31, 1995). See Martin v. Commercial Securities Co., 539 F.2d 521 (5th Cir. 1976). Georgia does not prohibit the "total of payments" method. However, see Vulcan Life & Accident Ins. Co. v. United Banking Co., 118 Ga.App. 36, 162 S.E.2d 798 (1968).
HAWAIIThe plaintiff claims that Hawaii uses "total of payments." Hawaii's statute uses substantially the same wording as Alabama's statute. Instead of "approximate unpaid balance of the loan," Hawaii uses the phrase "the scheduled or actual amount of unpaid indebtedness." The phrases are not significantly different in meaning.
IDAHODisputed. Idaho Code § 41-2306(1)(a) and (b) (current through end of 1995 Regular Session) limits the total amount of credit life insurance to "initial indebtedness," or "[i]n cases where an indebtedness is repayable in substantially equal instalments, the amount of insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." Idaho Administrative Code IDAPA 18, Title 1, Chapter 61, § 004 (current with amendments received through October 25, 1995) defines the term "indebtedness." "`Indebtedness' means the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." IDAPA 18.01.61.014 refers to "Gross CoverageDecreasing term." Idaho does not prohibit the "total of payments" method. See Maxwell v. Cumberland Life Ins. Co., 113 Idaho 808, 748 P.2d 392 (1987).
ILLINOISDisputed. Ill. St. Ch. 73, p. 767.54 (approved December 21, 1995) uses the same language that several other states use. That statute states: "The amount of credit life insurance shall not exceed the initial indebtedness. Where an indebtedness is repayable in substantially equal installments, the amount of insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." Illinois Administrative Code Title 50,
§ 951.10(a) (current with amendments received through December 29, 1995) provides that "only decreasing term insurance may be written in connection with an indebtedness which is repayable in substantially equal installments." Section 951.10(c) states that the "amount of insurance should at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." Section 951.40 (current with amendments received through December 29, 1995) defines "indebtedness" as the "total amount repayable including principal, interest and finance charges." Illinois does not prohibit the "total of payments" method.
INDIANADisputed. Indiana Code § 24-4.5-4-202(1)(a) (added 1983) limits the total amount of credit life insurance to "the debt" and "if the debt is payable in installments, [the amount of insurance] may not at any time exceed the greater of the scheduled or actual amount of the debt." Section 27-8-4-2 (current through end of 1995 regular session) defines "indebtedness" as the "total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." It does not appear that Indiana prohibits the "total of payments" method. See Chesak v. Northern Indiana Bank & Trust Co., 551 N.E.2d 873 (Ind.App.1990).
IOWABoth sides agree that Iowa uses "total of payments."
KANSASDisputed. Kansas Code § 16a-4-202(1)(a) (current as of 1988) limits credit life insurance to no more than "the debt" and if the debt is "payable in installments," no more than "the greater of the scheduled or actual amount of the debt." See ITT Life Insurance Corp. v. Farley, 783 F.2d 978 (10th Cir.1986), cert. denied, 476 U.S. 1171, 106 S. Ct. 2895, 90 L. Ed. 2d 982 (1986). Kansas does not appear to prohibit the "total of payments" method.
KENTUCKYDisputed. Kentucky Code § 304.19-040(1) (current through end of 1995 3d Executive Session) limits the amount of credit life insurance to no more than "the total amount repayable under the contract of indebtedness and, where an indebtedness is
repayable in substantially equal installments, the amount of insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." Section 304.19-020 (current through end of 1995 3d Executive Session) defines "indebtedness" as "the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." Kentucky does not prohibit the "total of payments" method.
LOUISIANABoth sides agree that Louisiana uses "total of payments."
MAINEThe defense does not claim that Maine uses "total of payments."
MARYLANDThe plaintiff concedes that Maryland uses "total of payments." See Blickenstaff v. Bankers Mortgage Co., 266 Md. 7, 291 A.2d 480 (1972).
MASSACHUSETTSThe defense does not claim that Massachusetts uses "total of payments."
MICHIGANDisputed. M.C.L.A. 550.605, § 5 (current through P.A.1995) uses terminology substantially similar to that used in Alabama's statute"The amount of credit life insurance shall not exceed the indebtedness. Where indebtedness is secured ... by a group policy of credit life insurance [the amount of insurance] shall not exceed the exact amount of unpaid indebtedness on such date." Also, Mich. Admin.Code reg. 550.208 (current with amendments received through August 31, 1995) implies that any excess above what is needed to pay off the debt should be paid "to the beneficiary, other than the creditor, named by the debtor, or to the debtor's estate:...." The excess in that case is defined as "the amount of the benefits in excess of the amount required to repay the indebtedness after crediting any unearned interest or finance charges." M.C.L.A. 550.603, "Definitions," § 3.(5) (current through P.A.1995), defines "indebtedness" as "the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." (Emphasis added.) Relying on Opinions of the Attorney General 1963-1964, No. 4334, p. 475, the statute goes
on to state that the "[w]ord `indebtedness' as used in this section and § 550.605, is unpaid principal and interest accruing at any point in time during life of loan." (Emphasis added.) Michigan allows the "total of payments" method.
MINNESOTAThe defense does not claim that Minnesota uses "total of payments."
MISSISSIPPIThe defense does not claim that Mississippi uses "total of payments."
MISSOURIBoth sides agree that Missouri uses "total of payments."
MONTANADisputed. MCA 33-21-202 (current through 1993 session) has language similar to that of Alabama's statute: "The initial amount of credit life insurance may not exceed the total amount repayable under the contract of indebtedness." What the term "indebtedness" seems to include depends on whether the loan is agricultural, educational, etc. The amicus brief of the Alabama Trial Lawyers Association quotes this statute but in doing so omits an interesting phrase: "whichever is greater." The full quote from the statute is: "If an indebtedness is repayable in substantially equal installments, the amount of credit life insurance may not exceed the scheduled or actual amount of unpaid indebtedness on the date of death, whichever is greater." Subparagraph (a) states, "The amount of credit life insurance written in connection with: (a) a credit transaction repayable over a term in excess of 63 months or, at the option of the insurer, for a shorter term may not exceed the actual amount of unpaid indebtedness on the date of death, excluding any: (i) unearned interest or finance charges; and (ii) delinquency or extension exceeding 4 months...." While subparagraph (a) is difficult to interpret, it does not seem rational that the amount of indebtedness should exclude any delinquency exceeding four months, as the ATLA amicus brief seems to indicate it does.
NEBRASKABoth sides agree that Nebraska uses "total of payments." See Warner
v. Reagan Buick, Inc., 240 Neb. 668, 483 N.W.2d 764 (1992).
NEVADABoth sides agree that Nevada uses "total of payments."
NEW HAMPSHIREDisputed. R.S.A. § 408-A:4 (current through end of 1994 regular session) uses terminology similar to that of Alabama's statute: "I. The amount of CREDIT LIFE INSURANCE shall not exceed the initial indebtedness. Where an indebtedness repayable in substantially equal installments is secured by an individual policy of CREDIT LIFE INSURANCE, the amount of insurance shall at no time exceed the scheduled amount of indebtednes..." Of comparable importance is paragraph II., which deals with "Credit Accident and Health Insurance":
(Emphasis added.) While § 408:15, paragraph II.(d) (current through Chapter 309 of 1995 Regular Session)"The amount of insurance on the life of any debtor shall at no time exceed the amount owed by him which is repayable in installments to his creditor."is interpreted by the ATLA amicus brief as clearly establishing a policy against the "total of payments" method of determining the amount of credit life insurance, New Hampshire regulation 1201.04(j) (current with amendments received through February 29, 1996) indicates otherwise: "If an indebtedness is prepaid by the proceeds of a CREDIT LIFE INSURANCE policy covering the debtor ..., then it shall be the responsibility of the insurer to see that the following refunds are paid to the insured debtor, if living, or the beneficiary, other than the creditor, named by the debtor or to
the debtor's estate: ... (3) In either case, the amount of the benefits in excess of the amount required to repay the indebtedness after crediting any unearned interest or finance charges." Why would there be any excess above the amount required to repay the indebtedness unless New Hampshire law allowed there to be an excess, i.e., unless it used the "total of payments" method of determining the amount?
NEW JERSEYThe plaintiff does not dispute the claim by the defense that New Jersey uses "total of payments." See Sherman v. Citibank (South Dakota), N.A., 143 N.J. 35, 668 A.2d 1036 (1995), judgment vacated, ___ U.S. ___, 116 S. Ct. 2493, 135 L. Ed. 2d 186 (1996); Trico Mortgage Co. v. Penn Title Ins. Co., 281 N.J.Super. 341, 657 A.2d 890, 896, cert. den., 142 N.J. 456, 663 A.2d 1363 (1995).
NEW MEXICOThe plaintiff does not dispute the claim by the defense that New Mexico uses "total of payments."
NEW YORKNot mentioned by either side.
NORTH CAROLINANot mentioned by either side.
NORTH DAKOTABoth sides agree that North Dakota uses "total of payments."
OHIODisputed. Ohio Code § 3918.04(A) (current as of 1995) uses terminology similar to that of Alabama's statute: "The amount of credit life insurance shall not exceed the initial indebtedness [and] where secured by a group policy of credit life insurance, shall at no time exceed the amount of unpaid indebtedness." Again, this statute is at best ambiguous, until one looks to the regulations. OH ADC XXXX-X-XX(C)(1)(j) (current through March 31, 1996) states:
Therefore, one can see by comparison of (i) and (ii) that the Ohio definition of "indebtedness" is not "exclusive of unearned finance charges" unless stated otherwise. See Cincinnati Central Credit Union v. Harper, 70 Ohio Misc.2d 80, 652 N.E.2d 10 (1995). Ohio allows the "total of payments" method.
OKLAHOMADisputed. The Oklahoma statute, Title 14A § 4-202 (effective 1969), also has language similar to that of the Alabama statute: "the amount of insurance may not initially exceed the debt." The Oklahoma regulations clarify the definition of the word "debt." OAC 365:10-5-66 (current with amendments received through October 13, 1995) states: "The initial amount of insured indebtedness to which the rate is applied shall not exceed the aggregate of the insured portion of the periodic scheduled unpaid installments of the indebtedness." That means one adds up the remaining installment payments to determine the initial indebtedness, i.e., Oklahoma uses the "total of payments" method. See National Interstate Life Insurance Co. v. Thomas, 630 P.2d 779 (Okla.1981); First National Bank of Porter v. Howard, 550 P.2d 561 (Okla.1976).
OREGONBoth sides agree that Oregon uses "total of payments."
PENNSYLVANIADisputed. Pennsylvania regulation 73.3(b) (obtained from 1996 Westlaw research) states: "The amount charged a debtor for any credit life insurance subject to this chapter shall not exceed the premiums charged by the insurer, as computed at the time the charge to the debtor is determined." This regulation is not very detailed. It does not explicitly address whether the insurance is based upon principal or principal and interest.
However, there are cases in Pennsylvania that are clear on this matter. In Dear v. Holly Jon Equipment Co., 283 Pa.Super. 74, 78, 423 A.2d 721, 723 (1980), the Court said,
"`[s]uch finance charge [for a car installment loan] shall be computed on the principal amount financed as determined under § 14-B-6 of this Act,' which provides that the `[p]rincipal amount financed ... shall be the total of the unpaid cash price balance plus the insurance premium costs plus other costs, for which the seller agrees to extend credit to the buyer.' 69 P.S. § 614 B(6)." The entire case deals with whether an "add-on" type of contract for the sale of an automobile violated the Pennsylvania proscription against excessive finance charges. The court found that it did not. Dear was quoted and followed in Skolnick v. Ford Motor Credit Co., 319 Pa.Super. 83, 465 A.2d 1064 (1983), appeal dismissed, 505 Pa. 608, 482 A.2d 1275 (1984).
RHODE ISLANDDisputed. Rhode Island Code § 27-30-4 (current as of 1994), states: "(a) The amount of credit life insurance shall not exceed the indebtedness. (b) Where an indebtedness repayable in substantially equal installments is secured by ... a group policy of credit life insurance, [the amount of credit life insurance] shall at no time exceed the amount of unpaid indebtedness." Reg. IX-Section 2-(11)(a) (current with amendments through October 20, 1995): "Credit life insurance may provide gross coverage, or net coverage, at the option of the insurer, for terms not exceeding 61 months.... The amount of credit life insurance provided to cover a lessee shall not exceed the amount or amounts that the lessee's successor, or his estate, becomes obligated to pay, either in one sum or in periodic payments, on the death of the lessee." The amount that the lessee is obligated to pay is not simply the principal.
Also, Reg. IX-Section 2-(7) (current with amendments through October 20, 1995) states "`Indebtedness' means `total amount repayable including principal, interest and finance charges.'" The word "indebtedness" is used in the Alabama regulations, but it is not defined. Here it is defined as including not only principal but also interest. This
helps in answering the only question in this case: Whether Alabama law authorizes lenders to base the amount of credit life insurance on (1) the principal; or (2) on the principal plus interest.
The Rhode Island Code section uses language similar to that of the Alabama statute and the other states that allow the "total of payments" method. It states: "The amount of credit life insurance shall not exceed the indebtedness. (b) Where an indebtedness repayable in substantially equal installments is secured by an individual policy of credit life insurance the amount of insurance shall at no time exceed the scheduled amount of indebtedness and, where secured by a group policy of credit life insurance, shall at no time exceed the amount of unpaid indebtedness." Rhode Island allows the "total of payments" method.
SOUTH CAROLINADisputed. South Carolina Code § 37-4-202(1)(a) (current through end of 1993 regular session) states: "In the case of consumer credit insurance providing life coverage, the amount of insurance may not initially exceed the debt and, if the debt is payable in installments, may not at any time exceed the greater of the scheduled or actual amount of the debt." It appears that the term "debt" is the same as "indebtedness," which is used in the Alabama regulation. Also, from § 37-4-202-(1)(b) (current through end of 1993 regular session), it appears that "debt" is defined as including principal and interest: "In the case of any other consumer credit insurance [i.e., insurance in transactions other than leases], the total amount of periodic benefits payable may not exceed the total of scheduled unpaid installments of the debts...." (Emphasis added.) A debtor paying the "unpaid installments of the debts" is not just paying off portions of the principal, but is also paying off interest. Interest is nothing more than a fee that is paid for allowing a person to take possession of a piece of property before actually paying the entire value of the property.
The South Carolina Code states that "the amount of insurance may not initially exceed the debt and, if the debt is payable in installments, may not at any time exceed the greater of the scheduled or actual amount of the debt." § 37-4-202. This is the typical language used in the codes of states allowing the "total of payments" method.
SOUTH DAKOTABoth sides agree that South Dakota uses "total of payments."
TENNESSEEDisputed. Tennessee Code § 45-5-305(3)(A) (current as of 1993) states: "Life insurance shall be in an amount which does not exceed the total amount of the loan and shall be for a period which does not exceed the term of the loan...." (Emphasis added.) Section 45-2-1106(1)(B) (current through end of 1995 session) states: "The initial amount of credit life insurance shall not exceed the total amount repayable under the total amount of the indebtedness." (Emphasis added.) Later, "indebtedness" is defined as "the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." (Emphasis added.) Tennessee Comprehensive Rules and Regulations, Title 0780-1-4-.01(1)(f): "`Indebtedness' means the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction...."
Section 56-7-907(a) (current through end of 1995 session) states: "The initial amount of credit life insurance issued in connection with a specific loan or other credit transaction shall not exceed the total amount repayable under the contract of indebtedness, which amount repayable may include the amount of the loan commitment by the creditor." (Emphasis added.) What is "indebtedness?" Tennessee Code § 56-7-904 (current through end of 1995 session) gives definitions: "As used in §§ 56-7-903-56-7-912 [including § 56-7-907] ... `Indebtedness' means the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction." (Emphasis added.) Tennessee Code § 56-7-904(8) (current through end of 1995 session).
Also, Regulation 0780-1-4-.05(1) (current with amendments received through May 15, 1995) states, "The initial amount of credit life insurance issued in connection with a specific loan or other credit transaction shall not exceed the total amount repayable under the contract of indebtedness...." (Emphasis added.)
The Tennessee Code states: "The amount and type of insurance which may be required or accepted hereunder shall bear a reasonable relation to the existing hazard and risk of loss and shall be subject to the following terms and conditions: (A) Life insurance shall be in an amount which does not exceed the total amount of the loan and shall be for a period which does not exceed the term of the loan." § 45-5-305(3) (current as of 1993). (Emphasis added.) This language in (A) is almost the same as the language of the Alabama statute, and, as discussed above, it seems to include interest. Tennessee does not prohibit the "total of payments" method. See In re Estate of I dell, [Ms. 03A01-9309-PB-00319, February 18, 1994], 1994 WL 49061 (Tenn.App.1994); Cooper v. Plateau Insurance Co., [Ms. 02A01-9208-CH-00226, March 17, 1993], 1993 WL 73868 (Tenn.App. 1993); Baggett v. Crown Automotive Group, Inc., [Ms. 89C-566, May 22, 1992], 1992 WL 108710 (Tenn.App.1992); Ritchie v. Cavalry Banking Fed. Savings & Loan Ass'n, [Ms. 01-A-01-9001-CH00044, August 24, 1990], 1990 WL 121565 (Tenn.App.1990) (unpublished); Phipps v. Watts, 781 S.W.2d 863, 864 (Tenn.App.1989) (credit life paid off $10,713.55 debt outstanding on car and $1,643.31 excess was paid to the estate); Nold v. Selmer Bank & Trust Co., 558 S.W.2d 442 (Tenn.App.1977).
TEXASBoth sides agree that Texas uses "total of payments." According to Texas Code § 5069-3.18, the amount of credit life insurance may not exceed "the total amount repayable under the contract of indebtedness and, where an indebtedness is repayable in substantial equal installments, the amount of
insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." This language is similar to that used by the other states that allow the "total of payments" method.
UTAHDisputed. Utah Code § 31A-22-804(1) (current through end of 1995 General and First Special Sessions) states: "Except as provided under Subsection (2) [dealing with nonapplicable education or agricultural loans], the initial amount of credit life insurance on the life of any one debtor may not exceed the total amount repayable under the contract of indebtedness. Where an indebtedness is repayable in substantially equal periodic installments, the amount of insurance may not exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." What is indebtedness? Indebtedness is defined under § 31A-22-802(6) (current through end of 1995 General and First Special Sessions) as "the total amount payable by a debtor to a creditor in connection with a credit transaction, including principal, finance charges and interest." (Emphasis added.) Clearly, Utah allows for the "total of payments" method.
VERMONTThe defense does not claim that Vermont uses "total of payments."
VIRGINIAThe defense does not claim that Virginia uses "total of payments."
WASHINGTONThe defense does not claim that Washington uses "total of payments."
WEST VIRGINIADisputed. West Virginia Code of State Rules, § 114-6-3(3.1) (current with amendments received through March 31, 1995): "Amounts payablecredit life insurance. The initial amount of credit life insurance shall not exceed the total amount repayable under the contract of indebtedness and, where an indebtedness is repayable in substantially equal installments, the amount of unpaid indebtedness, whichever is greater." (Emphasis added.) What is "indebtedness?" "`Indebtedness' means the total amount payable by a debtor to a creditor in connection with a loan or other credit
transaction." West Virginia Insurance Regulation § 114-6-2.5 (current with amendments received through March 31, 1995). (Emphasis added.) Use of the word "total" indicates that West Virginia does not prohibit the "total of payments" method. See Cook v. Lilly, 158 W.Va. 99, 208 S.E.2d 784 (1974); Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 207 S.E.2d 897 (1974).
WISCONSINDisputed. The following regulation, Wisconsin Admin.Code, § 424.208(1) (current through 1995 Act 26, published July 19, 1995), shows that the amount of credit life insurance is based upon the principal and interest, because it discusses the refund: "The initial amount of credit life insurance shall not exceed the total amount repayable under the contract of indebtedness however the indebtedness may be repayable, but: (a) In cases where an indebtedness is repayable in substantially equal instalments, the amount of insurance shall at no time exceed the scheduled or actual amount of unpaid indebtedness, which is greater...." Wisconsin Admin.Code of Insurance, § 3.25(9)(j) (current with amendments received through March 1, 1995), states:
Wisconsin does not prohibit the "total of payments" method.
WYOMINGDisputed. "Indebtedness" is not explicitly defined. Wyoming Code § 26-21-104 (current through Chapter 212 of the General Assembly of the 53d Legislature) states: "The initial amount of credit life insurance shall not exceed the total amount repayable under the contract of indebtedness.... (b) If an indebtedness is repayable in substantially equal installments, the amount of insurance shall not exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater." This statute is similar to Alabama's, which does not explicitly define "indebtedness." When does a financial institution give gratuitous loansloans without interest? What is the total amount of indebtedness, or money, that a debtor will pay to the creditor until the loan is retired? A debtor will pay back the money that he or she was lent, plus additional money. Therefore, the term "the original face amount of the specific contracts of indebtedness" refers not only to the amount of money that is lent, but to the interest as well.
Also, Code § 40-14-431(a)(i) (current through Chapter 212 of the General Assembly of the 53d Legislature) states:
Wyoming does not prohibit the "total of payments" method.
It is more than arguable that at least 42 states allow for the "total of payments" method of calculating the amount of insurance needed by the purchaser/debtor/insured.
MADDOX, Justice (dissenting).
Although I concurred in the result reached by this Court on original deliverance, I must now respectfully dissent. The facts clearly show that the defendants relied *196 upon administrative interpretations made by the State Insurance Department and the State Banking Department of Alabama's "Mini-Code," specifically, § 5-19-20(a), Ala. Code 1975, in administering credit sales involving insurance. Although these administrative interpretations may have been incorrect, the language of the statute itself is arguably ambiguous. The effect of today's decision is that a defendant can be punished for conduct that conformed to the interpretation of § 5-19-20(a), Ala.Code 1975, given by two separate state agencies.
One of the hallmarks of justice and fair play is that those performing a statutorily regulated activity should have the right to rely upon the interpretation of a state agency charged with the responsibility of administering the state regulatory scheme. This principle of justice and fairness is even more pronounced when conduct of a party could subject the party to a penalty or some other punishment. As the United States Supreme Court recently stated: "Elementary notions of fairness enshrined in this Court's constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose." BMW of North America, Inc. v. Gore, ___ U.S.___, ___, 116 S. Ct. 1589, 1591, 134 L. Ed. 2d 809 (1996). See also Shaffer v. Heitner, 433 U.S. 186, 217, 97 S. Ct. 2569, 2586-87, 53 L. Ed. 2d 683 (1977) (Stevens, J., concurring in the judgment) (although constitutional safeguards afforded to criminal defendants are not applicable to civil cases, due process requires notice before a civil penalty is imposed).
This Court has stated unequivocally that "in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable" and that "[a]bsent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive." Ex parte State Department of Revenue, [Ms. 1950195, June 7, 1996] 683 So. 2d 980, 983 (Ala.1996). (Citations omitted.) Likewise, the Supreme Court of the United States has held that when confronted with an ambiguous statutory provision it generally defers "to a permissible interpretation espoused by the agency entrusted with its implementation." Good Samaritan Hospital v. Shalala, 508 U.S. 402, 414, 113 S. Ct. 2151, 2159, 124 L. Ed. 2d 368 (1993). See also National Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 112 S. Ct. 1394, 118 L. Ed. 2d 52 (1992); Department of the Treasury, IRS v. FLRA, 494 U.S. 922, 933, 110 S. Ct. 1623, 1629-30, 108 L. Ed. 2d 914 (1990); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92, 108 S. Ct. 1811, 1817-18, 100 L. Ed. 2d 313 (1988).
Additionally, the persuasive effect of an administrative interpretation that has been in existence for a number of years is entitled to favorable consideration. In Robinson v. City of Montgomery, 485 So. 2d 695, 697 (Ala. 1986), this Court noted that "`[t]he correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to a favorable consideration by the courts,'" quoting Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So. 2d 317, 318 (1975). See also City of Birmingham v. AmSouth Bank, N.A., 591 So. 2d 473 (Ala. 1991).
In conclusion, the record clearly shows that the administrative interpretation had been in effect for a number of years, that the defendant had relied upon the interpretation and that the defendant had no notice that its activities violated the Mini-Code. We further can take judicial notice that the Legislature, no doubt aware of this lawsuit, has amended the statute to remove any ambiguity.
Based on the foregoing, I must respectfully dissent.
[1] McCullar's brief contains an error in its use of a quote from the C.S. Blackledge memo. The brief states that the "unpaid balance of the loan on an add-on precomputed note has clearly been defined by the State Banking Department as evidenced by the Blackledge Memo as `... the total of payments less paid installments and less refund or a credit for unearned charges.'" (Emphasis placed in quote by brief.) This is incorrect. The entire quote from Blackledge's memo is: "The original face amount of an add-on precomputed note is the total of payments and the unpaid principal balance of the loan at any time would be the total of payments less paid installments and less refund or credit for unearned charges." (Emphasis added.) The McCullar brief erroneously refers to the "unpaid balance" instead of the correct quote, "unpaid principal balance." The sentence from the memo, when read in context and in its entirety, supports the defendants' contention that the "total of payments" was acceptable to the Banking Department in 1981.
[2] The amicus curiae brief filed by the Alabama Trial Lawyers Association in opposition to the application for rehearing incorrectly asserts at p. 4 that "This Court's September 29 decision reflects the prevailing view held by 37 states."
[3] In an exchange during oral argument between the ATLA (Alabama Trial Lawyers Association) attorney and the Court regarding the manner in which other states treat credit life insurance, the ATLA attorney said that there were three categories of statesthose that clearly limit the amount of insurance to something less than the total of payments, those that clearly allow it, and those in between. With respect to that third group, he said, "Those in between have, some have language similar to Alabama. They're in the gray area, and there's been no either administrative ruling or any law that I can find, other than Arkansas is the only state." (Emphasis added.) Justice Houston asked a follow-up question: "You said that there are other states that fall into `gray area' that Alabama is in. Did you mean by that that this perhaps was ambiguous?" In his answer to that question, the ATLA attorney said that he meant these other "gray area" states had no clear judicial ruling "like McCullar." In other words, in the opinion of the attorney for ATLA, most of the states of the country have statutes with ambiguous language, and these other states' statutes are similar to Alabama's statute. However, Alabama's statute is not ambiguous, because it has received a "clear judicial ruling" in the very case he is arguing. This is circular reasoning at its finest, and it means no person or business is safe from retroactive changes in the law by this Court. It is akin to saying, "The law protects you from arbitrary punishment if you relied on the regulatory agency's interpretation of an ambiguous regulation, unless the Supreme Court has made the statute unambiguousretroactively." It represents the finest reasoning of Alice in Wonderland:
"`When I use a word,' Humpty Dumpty said, in a rather scornful tone, `it means just what I choose it to meanneither more nor less.'
"`The question is,' said Alice, `whether you can make words mean so many, different things.'"
Lewis Carroll, Through the Looking Glass, Chapter VI, Nelson Doubleday: Garden City, New York. | November 22, 1996 |
afb85283-1780-4518-83ad-63eb276f2790 | Alfa Mut. Ins. Co. v. Ray's Refrigeration | 682 So. 2d 452 | 1950840 | Alabama | Alabama Supreme Court | 682 So. 2d 452 (1996)
ALFA MUTUAL INSURANCE COMPANY, et al.
v.
RAY'S REFRIGERATION, et al.
1950840.
Supreme Court of Alabama.
September 20, 1996.
Finis E. St. John IV of St. John & St. John, Cullman, and Michael A. Stewart, Cullman, for Appellants.
Hugh C. Harris of Bland, Harris & McClellan, Cullman, for Ray's Refrigeration.
Bibb Allen and Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for Cullman Electric Cooperative.
Judith E. Dolan and Tracy N. Hendrix of Clark & Scott, P.C., Birmingham, for Associated Equipment, Inc.
BUTTS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala.R.App. P., and Capitol Chevrolet, Inc. v. Smedley, 614 So. 2d 439 (Ala.1993); Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So. 2d 822 (Ala. 1991); and Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989).
HOOPER, C.J., and ALMON, SHORES, KENNEDY, and INGRAM, JJ., concur.
HOUSTON, J., dissents, with opinion.
MADDOX, J., recuses.
HOUSTON, Justice (dissenting).
I must respectfully dissent. I wrote the opinions in Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989), and Cincinnati Insurance Co. v. Synergy Gas, Inc., 585 So. 2d 822 (Ala.1991), and this case is no Iverson or Cincinnati.
Fifty-two days before the fire that destroyed Larry Marks's home, Marks had bought a new heat pump from the defendant *453 Ray's Refrigeration. This unit was installed on May 29, 1992. Beginning several days after the heat pump was installed and continuing until the fire, every time the heat pump started to operate, lights in the house dimmed and then surged, light bulbs blew out, and breakers tripped repeatedly. Marks had never had these problems in his home before the new heat pump was installed. Ray's Refrigeration made numerous service calls during the 52 days between the installation of the heat pump and the fire. First, Ray's changed a breaker in the breaker box. On June 30, 1992 (20 days before the fire), agents of Ray's and of the defendant Associated Equipment (the heat pump distributor), inspected the heat pump. On July 14, 1992 (6 days before the fire), and three times on July 17, 1992 (3 days before the fire), Marks called Ray's because of "shooting bulbs," dimming and surging of lights, and breakers tripping in his breaker box. Ray's sent two linemen, who inspected the transformer, the weatherhead, and the connections at the meter base. When they removed the cover from the breaker box, they found in the breaker box, a new wire that was loosely connected. On July 17, 1992, Marks called Ray's when the 200-amp breaker kicked off. On July 18 and 19, 1992, the breaker kicked off and the heat pump stopped running. At 2:00 a.m. on July 20, 1992, Marks's home burned down. Marks was asleep in a second-story bedroom when his bedroom filled with smoke. Marks went down the back stairs to the basement. There was little smoke present in the basement. Outside, Marks saw fire coming from the top of the house in the attic area. The defendant Cullman Electric Cooperative ("Co-op") was called at 3:03 a.m. on July 20, 1992, to pull the destroyed power meter at the house. Ray's was informed of the fire at 8:00 a.m. on July 20, 1992, by Marks's daughter. Marks was hospitalized. An agent of Ray's telephoned the Co-op and said that a lawsuit was imminent. A Co-op employee immediately made a note for the Co-op's computer file on Marks"Do not give out any information of this account to anyone without Kim Arndt's approving." Employees of Ray's were told "not to talk to anybody period." One week after the fire, Ray's notified the defendant Associated Equipment that Marks's house had burned. The fire site was cleared, but not until three months after the fire. The clearing was done to rebuild Marks's home.
Marks and his homeowner's insurer, Alfa Mutual Insurance Company, which had paid for the loss, sued Ray's, Associated Equipment, and the Co-op, alleging that they were liable for the loss of the house. The trial judge entered a summary judgment for the defendants, based on their contention that Marks had improperly destroyed evidence the remains of the house and the heat pumpthat would or may have been useful to the defendants.
I would not allow these plaintiffs' claim to be dismissed as a sanction for spoliation, because the defendants knew that litigation was imminent and that the fire scene would eventually be cleaned up, but took no action to investigate. I would not reward the defendants for their ostrichism.
The plaintiffs presented substantial evidence to support their claims against the defendants. Therefore, it was error to grant the defendants' motions for summary judgment. I would reverse and remand. This controversy should be resolved by the trier of the facts. | September 20, 1996 |
c18da3b3-46a9-494a-aa78-66c30a526e76 | Nichols v. Town of Mount Vernon | 504 So. 2d 732 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 732 (1987)
Poland NICHOLS, Sr., as father of a deceased minor, Ryan Nathaniel Nichols; and Poland Nichols, Jr., a minor suing by and through his father and next friend, Poland Nichols, Sr.
v.
TOWN OF MOUNT VERNON; and The Plus Social Club, Inc.
Shemeka S. HARRIS, a minor, suing by and through her mother and next friend, Valerie Faye HARRIS
v.
TOWN OF MOUNT VERNON; and The Plus Social Club, Inc.
85-155, 85-156.
Supreme Court of Alabama.
March 6, 1987.
Richard F. Pate and Bryan G. Duhe, Mobile, for appellants.
Frank G. Taylor of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.
SHORES, Justice.
At the conclusion of the evidence in these cases, (one an action for personal injuries and the other based on the wrongful death of a minor), the trial court directed a verdict for the defendants, the Town of Mount Vernon and The Plus Social Club. The plaintiffs appeal from the judgments based on those directed verdicts. We affirm.
Valerie Harris was driving an automobile, in which there were five children riding as passengers, eastwardly on Movico Road, an unpaved road outside the town limits of Mount Vernon, but within its police jurisdiction. She stopped at the intersection of Movico Road and Highway 43. As she attempted to look left (north) for oncoming southbound traffic on Highway 43, her vision was obscured by vehicles parked along Movico Road and Highway 43. She testified that she was compelled to "inch up" and onto Highway 43. At this *733 time a van, travelling southward on Highway 43, indicated a right turn into Movico Road, which Harris said forced her to move even further onto the highway. Her automobile was struck by a vehicle driven by Willie Henderson, who was travelling south in the left southbound lane of Highway 43 (a four-lane highway). Ms. Harris and some of the children were injured; one of the children died as a result of the injuries. These two lawsuits were based upon that accident and the resulting injuries and death.
On appeal the plaintiffs argue that they produced evidence that the parked cars along Movico Road and Highway 43 resulted from business at a social club located in the southwest corner of the intersection of Highway 43 and Movico Road. They state in their brief that the "evidence clearly establishes that no police action had been taken on behalf of the Town of Mount Vernon to remedy the illegal, and dangerous condition which existed at the intersection of Highway 43 and Movico Road, and that persons parking in and about said intersection violated Alabama rules of the road ... by parking too near stop signs, and also ... by obstructing passage on roadways."
The evidence showed that the town council of the Town of Mount Vernon had discussed the parking situation around the intersection and had requested the State Highway Department to erect "No Parking" signs along the highway. These signs were eventually erected, but, according to the plaintiffs' theory, had the Town acted diligently the signs would have been erected earlier than they were, and, according to their argument, the accident would have been prevented. Similarly, the plaintiffs argue that had the Town of Mount Vernon enforced the rules of the road, which prevent one from parking too near stop signs (Code of Ala.1975, § 32-5A-137 and § 32-5A-139), the accident would have been prevented.
Neither of these theories imposes liability upon the Town of Mount Vernon.
The Town of Mount Vernon has never undertaken to erect "No Parking" signs on State Highway 43. It had no authority to do so. It asked the State Highway Department to erect such signs and the State eventually did. The plaintiffs argue that once the town undertook to ask the State to erect such signs, it assumed a duty which the law does not require of it, and, having assumed that duty, it somehow breached it by not seeing that the signs were promptly erected. We are not impressed by this argument, and hold that the trial court correctly directed a verdict in favor of the town on this claim. Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689 (1936); City of Prichard v. Kelley, 386 So. 2d 403 (Ala.1980).
The plaintiffs' second theory of liability is likewise unpersuasive. Plaintiffs argue that had the town ticketed the cars parked along the highway, it would not have been necessary for one to enter the highway without knowing whether there was oncoming traffic. This argument falls of its own weight. See Shearer v. Town of Gulf Shores, 454 So. 2d 978 (Ala.1984), and Calogrides v. City of Mobile, 475 So. 2d 560 (Ala.1985), where this Court held that the failure to provide police protection or the alleged inadequacy of police protection will not supply the basis for a tort action against a city.
The plaintiffs' brief fails to address the question of The Plus Social Club's liability in any manner. It is neither this Court's duty nor function to search for error not presented for review and argued in the brief. Rule 28, A.R.A.P.
The judgments of the trial court are affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur. | March 6, 1987 |
1cc12845-6cca-47bc-a3d3-6c09bbb2f090 | Ex Parte Gold Kist, Inc. | 686 So. 2d 260 | 1950731 | Alabama | Alabama Supreme Court | 686 So. 2d 260 (1996)
Ex parte GOLD KIST, INC.
Re Sherry DUKE
v.
GOLD KIST, INC.
1950731.
Supreme Court of Alabama.
October 18, 1996.
*261 John W. Clark, Jr., Tracy Hendrix and David W. McDowell of Clark & Scott, P.C., Birmingham, for Petitioner.
William P. Traylor III, Deborah S. Braden and P. Mark Petro of Yearout Myers & Traylor, P.C., Birmingham, for Respondent.
PER CURIAM.
The Defendant, Gold Kist, Inc., petitioned for certiorari review, arguing that the Court of Civil Appeals erred in reversing a judgment entered in its favor following a jury trial. See Duke v. Gold Kist, Inc., 686 So. 2d 258 (Ala.Civ.App.1995).
Sherry Duke, an employee of the United States Department of Agriculture ("USDA"), was injured while working at her job when she slipped in water, grease, and other substances that had accumulated on the floor of Gold Kist's poultry processing plant. The USDA had an office and a break room at the Gold Kist plant to facilitate the inspection of poultry. Duke had been working at the plant for nine months before the accident. In the accident she injured her back; she sued, alleging that the accident was caused by an unsafe or hazardous condition created by Gold Kist.
The trial judge instructed the jury that Duke could not recover if she had been contributorily negligent and that she could not recover if the condition that caused the accident was open and obvious. Duke argues that the trial court should have further explained that a possessor of land is not liable for harm caused by open and obvious danger "unless the possessor should anticipate the harm despite such knowledge or obviousness," relying on Restatement (Second) of Torts, § 343A (1965).
Duke properly preserved this issue for review. She requested that the trial court give the following two jury instructions based on Restatement § 343A:
Duke contends that this Court has implicitly adopted § 343A as the law in Alabama and that the trial court therefore erred in failing to give her requested instructions based on that section. See Campbell v. Valley Garden Apartments, 600 So. 2d 240 (Ala.1992); Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385 (Ala.1989). The Court of Civil Appeals agreed with that argument and reversed the judgment, holding that this Court had adopted § 343A as a correct statement of Alabama law and that the trial court had therefore erred in failing to give Ms. Duke's requested instructions.
We now decline to adopt § 343A as a correct statement of the law relating to the liability of a possessor of land. Therefore, *262 we reverse the judgment of the Court of Civil Appeals and remand the case.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and BUTTS, JJ., concur. | October 18, 1996 |
818e1f6f-a83a-4e96-8c2c-4dfb7eb52f89 | United Companies Lending v. McGehee | 686 So. 2d 1171 | 1941234 | Alabama | Alabama Supreme Court | 686 So. 2d 1171 (1996)
UNITED COMPANIES LENDING CORPORATION
v.
Michael McGEHEE, et al.
1941234.
Supreme Court of Alabama.
October 11, 1996.
Rehearing Denied December 6, 1996.
*1172 M. Christian King of Lightfoot, Franklin & White, L.L.C., Birmingham, John N. Leach, Jr. of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for Appellant.
Royce A. Ray III and George W. Finkbohner III of Finkbohner & Lawler, L.L.C., Mobile, for Appellees.
Robert E. Sasser, Dorothy W. Littleton and Michael B. O'Connor of Sasser & Littleton, P.C., Montgomery, for Amicus Curiae Mortgage Bankers Association of Alabama, Inc.
Bruce J. Downey III of Capell, Howard, Knabe & Cobbs, Montgomery, for Amicus Curiae Southern Community Bankers.
Palmer C. Hamilton, George A. LeMaistre, Jr. and A. Carson I. Nicolson of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for Amicus Curiae Federal National Mortgage Association.
H. Hampton Boles and Michael L. Edwards of Balch & Bingham, Birmingham, for Amicus Curiae Alabama Bankers Association.
Scott Corscadden, Deputy Atty. Gen., for Amicus Curiae Alabama State Banking Department.
Leah O. Taylor of Taylor & Taylor, Birmingham, for Amicus Curiae Alabama Trial Lawyers Association, in support of Appellees.
PER CURIAM.
The opinion of March 22, 1996, is withdrawn, and the following opinion is substituted.
Pursuant to Rule 5, Ala. R.App. P., this Court granted defendant United Companies Lending Corporation ("UCLC") permission to appeal from an interlocutory order denying its motion for a summary judgment and entering a partial summary judgment for the plaintiffs, Michael and Joyce McGehee. By entering the partial summary judgment, the circuit court disallowed UCLC'S defense by which it seeks to establish that § 5-19-31(a), Ala.Code 1975, exempts it from the consumer protection provisions known as the Mini-Code, § 5-19-1 to -31, Ala.Code 1975in particular, the 5% limit on discount points imposed by § 5-19-4(g). The issue, as narrowed on rehearing, is whether a mortgagee that is not approved to make National Housing Act loans in Alabama comes within the provision of § 5-19-31(a) that "The provisions of this chapter ... shall not apply to any loan ... involving an interest in real property ... where the creditor is a lending institution which is an approved mortgagee under the provisions of the National Housing Act."[1]
In June 1991, UCLC made a loan to the McGehees and took a mortgage on their home as security. The McGehees borrowed $31,827.76; in determining the amount the McGehees were to repay, UCLC added to that amount $2,972.24 in prepaid finance charges. Of the prepaid finance charges, $2,779.24 was imposed as a "loan fee," which is a nonrefundable mortgage origination fee within the meaning of "points" as that term is used in § 5-19-4(g), see Smith v. First Family Financial Services, Inc., 626 So.2d *1173 1266 (Ala.1993). This amount of points is approximately 8% of the amount financed.[2]
Section 5-19-4(g) provides:
(Emphasis added.)
Section 5-19-31(a) provides:
(Emphasis added.)[3]
The McGehees filed an action against UCLC alleging, in pertinent part:
UCLC raised as a defense and as a ground for summary judgment the exemption stated in § 5-19-31(a). The McGehees responded with a motion for summary judgment in their favor as to UCLC's exemption defense. The circuit court denied UCLC's motion and granted the McGehees' motion. This Court allowed an appeal pursuant to Rule 5, Ala. R.App. P.
The Department of Housing and Urban Development ("HUD") has promulgated regulations to effectuate the provisions of the National Housing Act ("NHA"). See 24 C.F.R. Part 202 (1994); Part 202 consists of §§ 202.1 through 202.20. Section 202.11(a) reads, in pertinent part:
(Emphasis added.)[4]
UCLC was approved on October 3, 1990, as a "nonsupervised mortgagee" (§ 202.14) for 1-4 family residences. The approval by HUD includes this restriction: "This approval covers the HUD Field Office Jurisdiction of New Orleans, Louisiana."
Under the HUD regulations, a mortgagee approved for a limited geographic area may originate NHA-insured mortgage loans from outside its approved area only by establishing branch offices that are themselves approved to submit applications for NHA insurance from the region in which the branch office is located:
24 C.F.R. § 202.12(m).[5]
The Mortgagee Approval Handbook published by HUD[6] reiterates these requirements for approval of branch offices in each jurisdiction in which the mortgagee wishes to originate NHA- or HUD-insured loans. Chapter 2 gives the "Mortgagee Approval Requirements," and division 2-1 gives the "General Approval Requirements," including paragraph h, which reads in pertinent part as follows:
(Emphasis added.)
UCLC acknowledges that it has no approved Alabama branch office. There is no evidence that UCLC had sought permission under the Handbook's provision 2-1(h)(3)(a) to do NHA-related business outside Louisiana, and, even if it had, Alabama is not contiguous to Louisiana.
The only legislative purpose for exemption from the Mini-Code of mortgage loans by NHA-approved mortgagees that presents itself *1176 to us is the fact that HUD extensively regulates its approved mortgagees. However, the Mortgagee Approval Handbook lists extensive requirements for approved main and branch offices: yearly verification reports; experience and qualifications of employees, including branch office managers; staffing and facilities requirements; communications capability and responsibility; restrictions on escrow accounts; responsibility for originating and servicing mortgages in accordance with HUD requirements; and net worth requirements. Because UCLC's Mobile office is not an approved branch office, however, these requirements do not apply to that office, and they do not apply to any other offices it has in Alabama.
The McGehees' mortgage loan from UCLC is not an NHA-insured mortgage loan. Thus, the provisions of the NHA do not apply to their loan.
UCLC argues that its mortgagors in Alabama, including the McGehees, are protected by Federal laws, notably the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq., and the Truth-In-Lending Act, 15 U.S.C. § 1601 et seq., so that the McGehees, UCLC says, are not left unprotected if UCLC is exempt from the Mini-Code. However, those Federal acts apply more broadly than to NHA-approved mortgagees, so the application of those acts is not a basis for exempting NHA-approved mortgagees from the protections given by the Mini-Code. Moreover, those Federal acts simply require disclosure and a three-day right of rescission; they do not set any limits on finance charges in general or points in particular.
For a discussion of the inadequacy of these disclosure and rescission requirements in protecting disadvantaged borrowers from predatory lending practices, including high discount points, see the testimony developed at a February 4, 1993, hearing before the House Subcommittee on Consumer Credit and Insurance. "Adding Injury to Injury: Credit on the Fringe." Hearing before the Subcommittee on Consumer Credit and Insurance of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Feb. 4, 1993, Serial No. 103-3. Witnesses and several members of the subcommittee expressed opinions that disclosure and rights of rescission do not provide enough protection, because many mortgages other than purchase-money mortgages do not require disclosure of annual percentage rates; because victims of targeted predatory practices are often working people who are less educated and less sophisticated about reading such instruments; and because the lenders start with small percentages of a homeowner's equity and later renew the loan, capitalizing accrued interest and thereby increasing the balance and the payment beyond the mortgagor's ability to pay.
The description of predatory practices was summarized by Steven D. Caley of the Atlanta Legal Aid Society, Inc., whose prepared testimony includes the following:
Hearing, op. cit., pp. 66-68.
The discount points and the conduct alleged against UCLC do not rise to the level described in this testimony, but the testimony serves to show the danger of allowing mortgage lenders that are not regulated except by the disclosure and rescission requirements of the Truth-In-Lending Act and RESPA to charge interest rates and discount points with no caps. Because UCLC's Alabama offices are not approved by HUD, they are not regulated by HUD. This fact supports a construction that only mortgagees whose offices in Alabama are approved by HUD are exempted by § 5-19-31 from the provisions of the Mini-Code. Such a construction would allow the points cap of § 5-19-4(g) to apply to such unregulated mortgagees and would provide at least that much protection to mortgagors taking loans from such mortgagees.
As to a broad category of "federally related mortgage loans," see 12 U.S.C. § 1735f-5(b),[8] Congress has enacted as part of the Depository Institutions Deregulation Monetary Control Act (DIDMCA), P.L. 96-221, Mar. 31, 1980, 94 Stat. 132, provisions limiting the application of state usury laws. Id., Title V, § 501, codified at 12 U.S.C. § 1735f-7a (1988). Section 1735f-7a(b)(4), however, *1178 allows states, after March 31, 1980, to limit discount points on federally related mortgage loans.[9]
Section 5-19-4(g) of the Alabama Code was enacted in 1988 and therefore qualifies as an overriding exception to DIDMCA's preemption of state usury laws in regard to federally related mortgage loans. The United States District Court for the Southern District of Alabama has so held, rejecting a claim by this same lender, UCLC, that the points cap of § 5-19-4(g) cannot apply to its mortgage loans because that cap is preempted by DIDMCA. Autrey v. United Companies Lending Corp., 872 F. Supp. 925 (S.D.Ala.1995). The court assumed, without deciding, that UCLC's loan to Autrey was "federally related" and held: "Because [DIDMCA] does not completely pre-empt Plaintiffs' Mini Code claims, which this Court so finds since § 5-19-4(g) qualifies under DIDMCA's [§ 1735f-7a](b)(4) override exception, remand is appropriate." 872 F. Supp. at 928 (emphasis added). Because Congress broadly allowed states to override its preemption of state usury laws as to discount points, we see no reason to limit the override enacted by our legislature in 1988 and codified at § 5-19-4(g).
Thus, we see no rational basis for extending to UCLC's offices in Alabama, which are not approved or regulated branch offices under the NHA approval procedures, the exemption by § 5-19-31(a) of mortgage loans made by NHA-approved mortgagees. There are overwhelming reasons, as described above, for construing that exemption not to apply to branch offices that are not approved to make NHA-insured loans.
The Mini-Code was enacted for consumer protection and so should be construed to effectuate that purpose, see, e.g., Jackson v. CIT Group/Sales Financing, Inc., 630 So. 2d 368 (Ala.1993); Spears v. Colonial Bank of Alabama, 514 So. 2d 814 (Ala.1987); Edwards v. Alabama Farm Bureau Mut. Cas. Ins. Co., 509 So. 2d 232 (Ala.Civ.App. 1986), cert. quashed, 509 So. 2d 241 (Ala. 1987); Derico v. Duncan, 410 So. 2d 27 (Ala. 1982).
Because the Mini-Code was intended to provide protection to the public by regulating creditors, it should be construed so as to effectuate that public protection. "Statutes intended for the public benefit are to be construed most favorably to the public." St. Paul Fire & Marine Ins. Co. v. Elliott, 545 So. 2d 760, 762 (Ala.1989); First Alabama Bank of Dothan v. Renfro, 452 So. 2d 464, 467 (Ala.1984); Gant v. Warr, 286 Ala. 387, 391, 240 So. 2d 353, 355 (1970); Employers Ins. Co. v. Johnston, 238 Ala. 26, 32, 189 So. 58, 63 (1939).
Furthermore, § 5-19-31(a) provides an exemption from the provisions of the Mini-Code and so should be construed strictly against the party seeking the exemption. Exceptions or provisos, which restrict the operation of a statute, "should be strictly construed, and ... only those subjects expressly restricted should be freed from the operation of the statute," Pace v. Armstrong World Industries, Inc., 578 So. 2d 281, 284 (Ala.1991).
These principles favor extending the protection of § 5-19-4(g) to an Alabama mortgagor whose Alabama mortgagee is not regulated under the NHA approval procedures and limiting the exemption in § 5-19-31(a) to mortgagees approved to make NHA loans in Alabama.[10]
*1179 UCLC concedes that it is not approved to make NHA loans in Alabama and that the McGehees' loan is not an NHA-insured loan. Its Mobile, Alabama, office, from which the McGehees' loan originated, is not an NHA-approved branch office, and UCLC does not have a branch office that is approved to make NHA loans in Alabama. We hold, therefore, that UCLC is not "a lending institution which is an approved mortgagee under the provisions of the National Housing Act" for purposes of the exemption provided by § 5-19-31(a), because, as to its operations in Alabama to which the Mini-Code might apply, UCLC is not such an "approved mortgagee." Thus, UCLC is not exempt from the provisions of the Mini-Code and § 5-19-4(g) applies to UCLC's loan to the McGehees. The circuit court correctly entered the partial summary judgment for the McGehees, correctly holding that UCLC is subject to the points cap of § 5-19-4(g), and it correctly denied UCLC's motion for summary judgment on the McGehees' complaint alleging that their loan violates § 5-19-4(g), which allows a creditor to "charge and collect points in an amount not to exceed five percent of the original principal balance."
APPLICATION GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
ALMON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
The sole issue raised by the McGehees on their application for rehearing is whether the trial court erred in rejecting an alternative argument allegedly made by them, which they argue supported the partial summary judgment entered for them as to the applicability of the Ala.Code 1975, § 5-19-31(a), exemption; we had reversed that partial summary judgment in our original opinion.[11] The McGehees argue that the trial court properly held that United Companies Lending Corporation (UCLC) was not entitled to a § 5-19-31(a) exemption, because they assert that their rejected alternative argument supports the partial summary judgment. The McGehees argue that the trial court erred in holding that UCLC was "an approved mortgagee under the provisions of the National Housing Act."[12] They concede that UCLC had received approval from the Secretary of Housing and Urban Development to underwrite federally insured loans out of its Baton Rouge, Louisiana, main office, but argue that, because UCLC did not obtain "branch office" approval for its Mobile, Alabama, office from the Mobile field office of the Department of Housing and Urban Development (hereinafter referred to as "HUD"), UCLC is not actually an NHA-approved mortgagee for purposes of § 5-19-31(a).[13] In order to resolve the issue raised by the McGeheeswhether HUD approval to make federally insured loans in Alabama is a prerequisite to obtaining a § 5-19-31(a) exemptionthis Court should have looked to federal law, which clearly establishes that UCLC is a HUD-approved mortgagee regardless of whether it seeks "branch approval" for any of its local offices. Because the majority did not, I must respectfully dissent.
Federal law gives the Secretary of Housing and Urban Development the authority to promulgate regulations governing the approval of lending institutions for participation *1180 as mortgagees in federal mortgage insurance programs:
12 U.S.C. § 1709(a). (Emphasis added.) Furthermore, 12 U.S.C. § 1709(b)(1) states:
In order to fulfill the mandate of § 1709(a) that the Secretary of Housing and Urban Development prescribe terms for "mak[ing prior] commitments for the insuring of ... mortgages," HUD has promulgated regulations setting out the criteria of a federally insurable mortgage and the requirements for being "a mortgagee approved by the Secretary" under 12 U.S.C. § 1709(b)(1).
The regulations pertinent to the issue before uswhether UCLC was "a mortgagee approved by the Secretary," 12 U.S.C. § 1709(b)(1), when it made the McGehee loanare contained in subpart B of part 202 of title 24 of the Code of Federal Regulations. The first pertinent provision is 24 C.F.R. § 202.11(a), which states:
The McGehees do not dispute the fact that UCLC filed an application and the necessary accompanying documents, as required by § 202.11(a) before making the McGehee loan.
The additional requirements for being an approved mortgagee for participation in federally insured loan programs are contained in 24 C.F.R. § 202.12:
Last, because UCLC falls within the § 202.14(a) definition of a "nonsupervised mortgagee," UCLC must, in addition to complying with the above regulations, also comply with additional, more specific rules contained in § 202.14(c) as to the maintenance of warehouse lines of credit and the filing of audit reports.[14]
The McGehees contend that UCLC failed to comply with § 202.12(m) and, therefore, was not "an approved mortgagee under the provisions of the National Housing Act" when it made its loan to them. That subsection states:
*1182 The McGehees argue that UCLC's Mobile office was a "branch office" that must have been registered with the HUD field office in Mobile in order to comply with § 202.12. I cannot agree with their contention though, because the plain language of subsection (m) does not require the approval of any lending institution office that does not "submi[t] ... applications [to HUD] for mortgage insurance." It is undisputed that UCLC has never made or underwritten a single federally insured loan out of its Mobile office. Furthermore, subsection (m) is written in permissive language ("may ... maintain [approved] branch offices"). It does not require that UCLC or any other NHA-approved mortgagee open "branch offices" at all.[15]
In the alternative, the McGehees argue that we should construe § 5-19-31(a) to require more than 24 C.F.R. §§ 202.11 and 202.12 require to be an NHA-approved mortgagee. Their argument for the judicial imposition of an additional Alabama approval requirement on mortgagees seeking a § 5-19-31(a) exemption is very similar to the McGehees' argument that we rejected in our original opinionthat this Court should, for the same policy reasons, construe the § 5-19-31(a) exemption to apply only in instances where an NHA-approved mortgagee is actually making a federally insured mortgage. The majority seems to base its opinion on rehearing on the same sort of policy argument:
686 So. 2d at 1178. See also note 3. The problem with the reasoning underlying the McGehees' argument and the majority's opinion is that it fails to acknowledge that Alabama courts cannot resort to judicial construction of a statutory provision unless the provision in question is ambiguous.[16] After fully considering the statutory language in question, I cannot conclude that the § 5-19-31(a) phrase "an approved mortgagee under the provisions of the National Housing Act" is ambiguous. That phrase clearly and unambiguously leads the reader to the Federal law, contained in 24 C.F.R. §§ 202.11(a) and 202.12, defining which mortgagees are, and which are not, approved to make NHA federally insured mortgages.
But even if the § 5-19-31(a) phrase "an approved mortgagee under the provisions of the National Housing Act" could be held ambiguous, I could not agree with the majority's contention that this Court should interpret that phrase as requiring NHA-approved mortgagees to seek "branch office" approval in Alabama in order to qualify for a § 5-19-31(a) exemption. "It is a fundamental principle of statutory construction that [a court construing a statute will assume that] in enacting the statute the legislature had full knowledge and information as to prior and existing law ... on the subject of the statute." Miller v. State, 349 So. 2d 129, 131 (Ala.Crim.App.1977).[17] "[W]e presume that *1183 the Legislature knows the meaning of the words it uses in enacting legislation." Ex parte Jackson, 614 So. 2d 405, 407 (Ala.1993). In construing the phrase in question, this Court must presume that the legislature had full knowledge of the NHA approval procedures contained in the federal regulations. Those regulations, as shown above, provide that a mortgagee that wishes to make federally insured mortgages must first seek HUD approval for its main underwriting office, and that once the mortgagee is approved by the Secretary of HUD it can then seek approval for any other "branch offices" out of which the approved mortgagee intends to underwrite federally insured mortgages.[18] Section 202.12(m) makes it abundantly clear that "branch office" approval is not a requirement for being an NHA-approved mortgagee, but is instead completely optional.[19]
I cannot conclude, from the facts contained in the record, that UCLC failed to satisfy any of the federal requirements found in 24 C.F.R. §§ 202.11, 202.12, or 202.14 for being approved to participate in the mortgage insurance programs authorized by the National Housing Act; therefore, I must dissent, because I am convinced that our initial holdingthat the trial court erred in entering the partial summary judgment in favor of the McGehees as to the issue of the applicability of the Ala.Code 1975, § 5-19-31(a), exemptionwas correct.
HOOPER, C.J., and MADDOX, J., concur.
[1] The dissent asserts that this question was not presented to the circuit court. On the contrary, the McGehees' brief in opposition to UCLC's motion for summary judgment made the point that UCLC was not approved to make NHA loans in Alabama: "UCLC's `approval' covers only the New Orleans HUD field office jurisdiction. On October 3, 1990, UCLC received its `approval.'" That brief also states: "UCLC has not applied for branch approval for any of its branches to make HUD and/or National Housing Act loans. It is undisputed that UCLC has not obtained separate HUD approval to originate FHA loans out of its Mobile, Alabama branch." These points are sufficiently set forth in the record to support the circuit court's order.
[2] The McGehees allege that the $133.50 "interim interest" and the $59.50 "tax service fee" that make up the balance of the prepaid finance charges are also points. We express no opinion on whether these items constitute points; if they do, the points in this loan exceed 8.5% of the amount financed.
[3] Before a 1994 amendment, § 5-19-31(a) read: "None of the provisions of this chapter ... shall apply"; this opinion uses the current version because the change is insubstantial. See 1989 Ala. Acts, Act No. 89-541, p. 1132; 1994 Ala. Acts, Act No. 94-118, p. 146.
[4] The dissent quotes other portions of the HUD regulations, but, as we read these regulations, most of them apply only to an approved mortgagee's home office or to approved branch offices. It appears that unapproved branch offices are not supervised by HUD. Thus, approved mortgagees who maintain branch offices but do not seek approval to make NHA loans from those offices apparently may run those offices with no concern for most of the federal regulations. Thus, we are concerned by the dissent's suggestion that a claim based on the activities of such a branch office should be dismissed out of hand on a motion for summary judgment.
[5] The dissent characterizes the language in § 202.12(m) concerning branch office approval as "permissive." The suggestion in footnote 15 of the dissent that such an office could originate NHA loans is contrary to the Federal regulations. However, branch office approval is required before such an office may submit NHA loan applications.
[6] Publication 4060.1, October 1980, with all changes through #3, 12/29/86; this version was in effect when UCLC obtained approval for its home office and when it made the loan to the McGehees.
[7] See Smith v. First Family Financial Services, Inc., 626 So. 2d 1266 (Ala.1993), regarding an attempt to avoid the 5% discount point cap of § 5-19-4(g) by not disclosing commissions to mortgage brokers as prepaid finance charges.
[8] An NHA-insured mortgage loan is "federally related" as defined in § 1735f-5(b)(2)(B). Categories (A), (C), and (D) are "federally related" otherwise than by NHA insurance. Category (D) appears to be the broadest, making a loan "federally related" simply because the creditor "makes or invests in residential real estate loans aggregating more than $1,000,000 per year."
[9] 12 U.S.C. § 1735f-7a(b)(2) allowed states to override DIDMCA's preemption of state usury laws by enacting interest rate caps, but only within a narrow time period (1980-83) and only by expressly overriding DIDMCA. 12 U.S.C. § 1735f-7 more broadly allows states to override the usury law preemption that is specific to NHA loans. See Doyle v. Southern Guar. Corp., 795 F.2d 907, 914 (11th Cir.1986), which discusses these override provisions. These provisions are separate from § 1735f-7a(b)(4), discussed in the text, which allows states to override DIDMCA preemption as to caps on discount points simply by enacting a cap on discount points after March 31, 1980. See Autrey v. UCLC, discussed later in the text.
[10] The dissent construes the exemption most favorably to the party seeking exemption. The principle that the legislature is presumed to know the applicable laws and Federal regulations leads us to conclude that the legislature was aware that branch offices in Alabama require separate approval and therefore intended that only such approved branch offices would be exempt, not, as the dissent would conclude, that the legislature intended to exempt all offices opened by mortgagees with NHA approval in some other state, whether or not the offices in this state are approved to make NHA loans.
[11] The issue the majority addresses in its opinion on rehearing was not raised by the McGehees in the trial court. The only issues raised below were addressed in my opinion of March 22, 1996.
[12] In its order granting the partial summary judgment for the McGehees, the trial court stated that "it is undisputed that [UCLC] is an approved mortgagee under the provisions of the National Housing Act."
[13] The pertinent portion of § 5-19-31(a) (as it read before the February 24, 1994, amendment) states:
"None of the provisions of this chapter ... shall apply to any ... mortgage of an interest in real property, where the creditor is a lending institution which is an approved mortgagee under the provisions of the National Housing Act. ..."
(Emphasis added.)
[14] I cannot agree with the following assertion of the majority:
"Because UCLC's Alabama offices are not approved by HUD, they are not regulated by HUD. This fact supports a construction that only mortgagees whose offices in Alabama are approved by HUD are exempted by § 5-19-31 from the provisions of the Mini-Code."
686 So. 2d at 1177. The McGehees and all other persons who do business with mortgage companies that are NHA-approved mortgagees do benefit from the regulations contained in 24 C.F.R. §§ 202.12 and 202.14, whether or not the office they deal with is a "branch office" approved under § 202.12(m). These regulations ensure that NHA-approved mortgagee institutions are reputable and financially stable, and, most importantly, that such institutions are capable of answering to the mortgagor if a problem arises (in other words, compliance with these regulations ensures that a mortgagee is not a "fly-by-night" mortgage company). For example, the regulations applicable to all NHA-approved mortgagees require that such mortgagees: follow procedures acceptable in the mortgage industry generally (see § 202.12(l)(4)), have adequate financial resources (see § 202.12(n), (o), and (q)), are insured for errors and omissions (see § 202.12(r)), as well as comply with federal lending and housing laws.
[15] UCLC also argued in its brief that, according to its reading of the regulations, it would not have violated 24 C.F.R. § 202.12(m) for its Mobile office to go as far as to take applications for federally insured mortgages without "branch office" approval, as long as its Mobile office was not participating in the underwriting of federally insured mortgages.
[16] See Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 924 (Ala.1994), which states:
"When a statutory pronouncement is clear and not susceptible to different interpretations, it is a paramount judicial duty to abide by that clear pronouncement."
(Citing Macon v. Huntsville Utilities, 613 So. 2d 318 (Ala.1992).)
[17] See Holstein v. Norandex, Inc., 194 W.Va. 727, 461 S.E.2d 473, 477 (1995):
"A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith."
(Emphasis added.) (Quoting State ex rel. Goff v. Merrifield, 191 W.Va. 473, 446 S.E.2d 695 (1994), and other cases.) See also Holmes County School Bd. v. Duffell, 651 So. 2d 1176 (Fla. 1995); Wilson v. Miles, 218 Ga.App. 806, 463 S.E.2d 381 (1995); Nunnally v. State Dep't of Public Safety, 663 So. 2d 254 (La.App.1995); Smith v. Retirement Bd., 656 A.2d 186 (R.I.1995); Still v. First Tennessee Bank, N.A., 900 S.W.2d 282 (Tenn.1995).
[18] For the same reasons, this Court must also presume that the legislature was aware that 24 C.F.R. § 202.11(a)(4) allows the Secretary of HUD to restrict geographically the approval of mortgagees applying under § 202.11(a). Subsection (a)(4) states:
"(4) Approval of mortgagees may be restricted to geographic areas designated by the Secretary or may be approved to operate on a nationwide basis."
Had the legislature intended to restrict the application of Ala.Code 1975, § 5-19-31(a), to NHA-approved mortgagees who have been approved to make federally insured loans in Alabama, the legislature could have easily done so, just as the legislature, if it had so chosen, could have restricted the application of the exemption to federally insured mortgage loans only (an argument rejected in this Court's original opinion). See Ex parte Jackson, 614 So. 2d 405, 407 (Ala.1993):
"[W]e presume that the Legislature knows the meaning of the words it uses in enacting legislation.... [I]f it intended [the section in question] to apply in this case, [it] knew how to draft a statute to reach that end.... The judiciary will not add that which the Legislature chose to omit."
(Emphasis added.)
[19] The requirements for being an NHA-approved mortgagee, aside from the § 202.11(a) application requirement, are contained in 24 C.F.R. § 202.12. That section states:
"To be approved for participation in the mortgage insurance programs authorized by the National Housing Act, except Title I of the Act, and to maintain approval, a mortgagee shall meet the general requirements of this section ... and the specific requirements of § 202.13 through § 202.19, as appropriate."
(Emphasis added.) The requirement at issue here is found in subpart (m):
"(m) Branch offices. It may, only upon approval by the Secretary, maintain branch offices for the submission of applications for mortgage insurance. The mortgagee shall remain fully responsible to the Secretary for the actions of its branch offices." | October 11, 1996 |
3d3ee98b-1d58-4b5c-b772-cc43943b2cda | Murphy v. City of Mobile | 504 So. 2d 243 | N/A | Alabama | Alabama Supreme Court | 504 So. 2d 243 (1987)
Michael Thomas MURPHY
v.
CITY OF MOBILE, et al.
85-685.
Supreme Court of Alabama.
February 20, 1987.
Rehearing Denied March 20, 1987.
John Grow, Mobile, for appellant.
Roderick P. Stout of Stout & Roebuck, Mobile, for appellees.
HOUSTON, Justice.
This is an appeal from an order of the Circuit Court of Mobile County denying the petition for a writ of mandamus to the City Council of the City of Mobile ordering the council to give effect to a council resolution appointing Murphy to the office of municipal judge.
The City of Mobile's municipal court operates with two part-time municipal judges, who are appointed by the City Council.
Both parties concede that the City Council has the power of appointment to the office of municipal judge. The sole issue is whether this power of appointment is governed by the five-vote requirement of § 11-44C-28, Code 1975, or by the majority-vote provision of § 12-14-30(a), Code. There are seven members on the Mobile City Council.
We hold that the City Council's power to appoint municipal judges is governed by § 12-14-30(a), Code, and we reverse the trial court's order denying the writ.
After the expiration of the term of one municipal judge, a resolution was presented to the City Council, at a regular council meeting, nominating Murphy for appointment to that municipal judge position. Four members of the seven-member council voted in favor of the resolution; three voted against it. The presiding officer of the council declared that the resolution had failed, since it did not receive five votes. This decision was based upon § 11-44C-28, Code, which provides:
*244 This applies only to Class 2 municipalities, those having a population between 175,000 and 399,999.
Amendment No. 328, Constitution of Alabama 1901 (the Judicial Article), provides that the judicial power of the State shall be vested in a unified judicial system consisting of various courts, including "such municipal courts as may be provided by law." § 6.065 of the Judicial Article provides: "Municipal judges shall be appointed and vacancies filled by the governing body of the municipality, in accordance with uniform terms, conditions and procedures as may be provided by law...." (Emphasis added.)
Amendment No. 328 of the Constitution was proclaimed ratified December 27, 1973 (Proclamation Register No. 3, p. 32).
Pursuant to Act No. 1205, Acts of Alabama 1975, § 8-101 (§ 12-14-1, Code), a municipal court was established for each municipality within the state, subject to an exception which is not applicable in this case. Section 8-102 of that Act (§ 12-14-30, Code) provides:
The remainder of this section sets out the terms of such municipal judges and certain conditions and procedures involving such judges.
Section 12-14-30(a) is specific. It relates only to the appointment of municipal judges. Section 11-44C-28 is general and could relate to anything. There is a rule of statutory construction that specific provisions relating to specific subjects are understood as exceptions to general provisions relating to general subjects. Bouldin v. City of Homewood, 277 Ala. 665, 174 So. 2d 306 (1965); Geter v. United States Steel Corp., 264 Ala. 94, 84 So. 2d 770 (1956). Therefore, we interpret the majority-vote requirement pertaining to the appointment of municipal judges as an exception to the five-vote requirement for the adoption of other kinds of ordinances. Since we interpret § 12-14-30(a) as being an exception to § 11-44C-28, it is not necessary to decide whether § 11-44C-28, Code, would be constitutional if it did effectively repeal § 12-14-30(a), Code, for lack of the uniformity required by § 6.065 of the Judicial Article.
The trial court's statement that it was not necessary for the court to reach the question of the requisite number of votes since the February 4, 1986, resolution had never been officially adopted or considered by the City Council is in error.
The following appears in the minutes of the February 4, 1986, City Council meeting:
We reverse the trial court's order denying the writ and remand for the trial court to grant the writ.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, ALMON and BEATTY, JJ., concur. | February 20, 1987 |
639631de-f34b-4dc9-8778-438b0c75f880 | CUSTARD INS. ADJUSTERS v. Youngblood | 686 So. 2d 211 | 1930797 | Alabama | Alabama Supreme Court | 686 So. 2d 211 (1996)
CUSTARD INSURANCE ADJUSTERS, INC.
v.
Randy YOUNGBLOOD, d/b/a Youngblood Trucking Company; and Charles Alvin Wiley, as Administrator of the Estate of Christine N. Wiley, Deceased.
1930797.
Supreme Court of Alabama.
November 27, 1996.
*212 Thomas R. Elliott, Jr., of London, Yancey, Elliott & Burgess, Birmingham, for Appellant.
D. Leon Ashford and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Jack B. McNamee and J. Michael Campbell of McNamee, Snead & Campbell, Birmingham, for Appellees.
Thomas H. Nolan, Jr., of Brown, Hudgens, P.C., Mobile, for Amicus Curiae National Association of Independent Insurance Adjusters, in support of the Appellant.
KENNEDY, Justice.
The opinion of July 26, 1996, is withdrawn and the following opinion is substituted therefor:
The issue in this interlocutory appeal by Custard Insurance Adjusters, Inc., is whether § 27-10-2(b), Ala.Code 1975, is unconstitutional *213 on the basis that it discriminates against insurance adjusters.[1]
In November 1987, Youngblood Trucking Company ("Youngblood"), by and through its president Randy Youngblood, purchased automobile and truck liability insurance through Jack Eyer, an insurance agent for Junkins-Yarbrough Corporation ("JYC"). The insurer issuing the policy was Fiduciary Indemnity Insurance Group, Ltd. ("Fiduciary"). Eyer applied for the Fiduciary insurance policy through Myrtle Beach Underwriters, Inc., located in South Carolina, and Myrtle Beach was listed as the agent on the policy. The policy period was from November 25, 1987, through November 27, 1988, and the policy provided coverage of $500,000 per accident.
When Eyer applied for the policy, he knew that neither Fiduciary nor Myrtle Beach was authorized to transact insurance business in Alabama either as a foreign insurer complying with § 27-3-4 or as a surplus lines carrier.
According to Eyer, he believed that the policy could be written through a licensed surplus lines insurance broker in Alabama. However, neither Eyer, Fiduciary, nor Myrtle Beach attempted to obtain surplus lines insurance coverage through a licensed surplus lines broker. However, Eyer eventually attempted to obtain surplus lines insurance coverage after an accident had occurred involving a Youngblood truck.
Surplus lines insurance coverage is issued when insurance coverage cannot be procured from authorized insurers on terms acceptable to the insureds; in such an event, certain unauthorized insurers may sell insurance to Alabama citizens through a properly licensed surplus lines broker. See § 27-10-20. To become a properly licensed surplus lines broker, a person must be licensed as a resident insurance agent or broker and be deemed by the insurance commissioner to have sufficient experience in the insurance business; that person must apply for a surplus lines coverage license, pay a licensing fee, and obtain a bond. § 27-10-24. A surplus lines broker has certain duties he or she must comply with before issuing surplus lines coverage, including ascertaining the financial soundness of the unauthorized insurance company. Dutton v. Chester F. Raines Agency, Inc., 475 So. 2d 545 (Ala.1985); § 27-10-26.
On May 5, 1988, a Youngblood truck was involved in a collision with an automobile; the occupant in the automobile, Christine Wiley, was killed. Subsequently, Myrtle Beach used its in-house adjusting service, Beach Claim Services, to find an adjuster in Alabama. Beach Claim Services contacted Custard, and Custard investigated and adjusted the claim.
In June 1988, Eyer, knowing that the Fiduciary policy was not authorized, contacted McGriff, Seibels & Williams ("McGriff"), a licensed surplus lines broker in Alabama, asking that it pay the surplus lines insurance tax on the Fiduciary liability policy issued to Youngblood. Eyer did not tell McGriff that there had been an accident covered by the policy. Also, Eyer personally paid the surplus lines tax on the policy.
The administrator of Wiley's estate sued Youngblood, alleging wrongful death. Fiduciary and Myrtle Beach were added as real parties in interest, pursuant to Rule 17, Ala. R.Civ.P. Fiduciary retained counsel to defend its position, and Beach Claim Services, acting on behalf of Myrtle Beach, hired counsel to represent Youngblood. The lawsuit resulted in a $750,000 judgment in favor of Wiley's estate. Fiduciary refused to pay the judgment. In 1990, Youngblood sued Fiduciary, Myrtle Beach, Eyer, JYC, and Custard for damages based on Fiduciary's failure to pay its claim under the policy. Custard is the only defendant involved in this appeal.
Youngblood filed a motion for a summary judgment, alleging that Custard had undertaken to investigate and adjust the loss on behalf of Fiduciary, an unauthorized insurance company. Therefore, Youngblood contended, Custard was liable pursuant to § 27-10-2(b). Youngblood also claimed that the *214 Fiduciary policy was not lawfully written as surplus lines insurance coverage pursuant to the statutory provisions regarding "unauthorized insurers and surplus lines," Title 27, Chapter 10, §§ 27-10-1 through -56.
Custard moved for a summary judgment, claiming that it had not been involved in the solicitation, procurement, or negotiation of the Fiduciary policy issued to Youngblood and that it had become involved only after the insurance coverage had been purchased. Custard asserted that § 27-10-2(b) violates the Alabama Constitution. Custard argues that § 27-10-2(b) discriminates against adjusters in an arbitrary, unreasonable, and unnecessary manner and is therefore unconstitutional. Specifically, Custard argues that the statute creates unequal governmental classifications that are not rationally related to any legitimate state purpose. Custard also argues that § 27-10-2 is ambiguous, unduly vague, unreasonable, and overbroad, and therefore violates the right to due process.
The trial court denied Custard's summary judgment motion and granted a partial summary judgment in favor of Youngblood and against Custard. In its order, the trial court held (1) that Youngblood's liability policy with Fiduciary did not qualify as a permissible surplus lines insurance policy, (2) that Custard had undertaken to investigate and adjust the claim on behalf of Fiduciary, and (3) that Youngblood had suffered a loss due to Custard's actions regulated or restricted by § 27-10-2(b). The trial court held that Youngblood was entitled to a judgment as a matter of law on the question of Custard's liability under § 27-10-2(b), with a jury to determine the amount of damages.
We set out here the applicable sections of the "unauthorized insurers and surplus lines" chapter. Section 27-10-2, entitled "Liability of persons violating section 27-10-1; liability of adjusters," provides:
Section 27-10-1 ("Representing or aiding unauthorized insurer not allowed; exceptions; validity of contracts") provides:
Custard argues that § 27-10-2(b) treats insurance adjusters in a manner different from the manner in which § 27-10-2(a) treats insurance agents and brokers. Custard argues that the statute applies a "willful" standard for imposing liability on insurance agents and brokers who solicit business from unauthorized insurers, but that, in contrast, § 27-10-2(b) applies a "no-fault" standard for imposing liability on adjusters. Custard argues that the different standard of treatment for adjusters is not rationally related to any legitimate state interest. It argues that agents and brokers are the ones more probably culpable because they are likely to have been involved in soliciting unauthorized insurers.
As to Custard's equal protection argument under the Alabama Constitution, we note that this Court has determined that §§ 1, 6, and 22 of the Declaration of Rights of the Alabama Constitution combine to guarantee equal protection under the laws of Alabama. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala.1991).
Moore, 592 So. 2d at 165-66 (citations omitted).
The insurance business is affected with a public interest, and it is within the police power of the state to govern and regulate insurance companies. Hood v. Prudential Ins. Co. of America, 460 So. 2d 1227 (Ala.1984), appeal after remand, 522 So. 2d 265 (Ala.1988).
The United States Supreme Court has recognized the purpose of statutes regulating the insurance business as:
Robertson v. California, 328 U.S. 440, 447, 66 S. Ct. 1160, 1164, 90 L. Ed. 1366 (1946).
We disagree with Custard's equal protection argument. First, we do not agree that the statute imposes different standards for agents and brokers as opposed to adjusters. The Legislature adopted the provisions of the "unauthorized insurers and surplus lines" chapter in order to protect Alabama citizens from insurers who are not properly authorized to operate in the state. Consistent with that purpose, the Legislature imposed certain duties on surplus lines brokers seeking to lawfully aid the unauthorized insurers. For example, the surplus lines broker must check the financial soundness of the unauthorized insurer, so that a person does not end up with an unenforceable insurance policy. § 27-10-26. Also consistent with the legislative purpose of the Act, the statute provides penalties for those agents and brokers who do not comply with the statute. Specifically, "[a]ny person who in this state willfully represents or aids an unauthorized insurer in violation of section 27-10-1" shall be liable for penalties. § 27-10-2(a). Section 27-10-2(a) sets out two types of conduct for which a person could be liable, namely, willfully representing an unauthorized insurer or aiding an unauthorized insurer.[2] Section 27-10-2(a) deals with conduct that is willful, but also deals with conduct that aids an unauthorized insurer in illegally selling insurance in Alabama, whether the aid was rendered willfully or not.
Second, even if the statute imposed a "willful conduct" standard on an agent or broker and imposed a "no fault" standard of conduct on adjusters, we would hold that such a standard is rationally related to a legitimate state interest, specifically the purpose of protecting Alabama citizens from abuses by unauthorized insurers illegally operating in this state. Custard asks "What justification exists to penalize the adjuster for providing a policy benefit?" We think the justification is based on the adjuster's role in the insurance industry. The reason a person purchases insurance is so that the insurer will pay him for specified losses under specified perils. An insured person does not have a claim on an accident insurance policy until an accident occurs. An adjuster's job is to investigate that claim and determine the amount of damages, and, in return, the adjuster is paid for his services. To allow adjusters to facilitate the insurance claims process for unauthorized insurers without some duty on the adjusters' part to protect Alabama citizens from unauthorized insurers illegally operating would go against the Legislature's intentions in adopting the provisions of Chapter 10. A surplus lines broker must file a report with the insurance commissioner when surplus lines coverage is issued; therefore, it would be easy for an adjuster to check with the insurance commissioner to see if the unauthorized insurer has issued surplus lines coverage.
Custard argues that § 27-10-2 is ambiguous and that, because of that ambiguity, § 27-10-2, as applied to Custard, is unduly vague, unreasonable, and overbroad, and therefore denies due process.
The right to due process is guaranteed under the Alabama Constitution of 1901, Article 1, §§ 6 and 22. That right is violated when a statute or regulation is unduly vague, unreasonable, or overbroad. Ross Neely Express, Inc. v. Alabama Dep't of Environmental Mgt., 437 So. 2d 82 (Ala.1983).
Custard argues that § 27-10-2 is unreasonable because, it says, no public purpose is served by imposing liability upon an adjuster for investigating claims filed with *217 unauthorized carriers. We disagree. We think it not unreasonable for the Legislature to include adjusters in § 27-10-2, because adjusters have a duty, as discussed above, to protect persons from unauthorized insurers illegally operating in Alabama. Custard argues that the statute is overbroad by imposing liability upon adjusters, who generally are not involved with the procurement of coverage. Although adjusters generally do not procure insurance, they are involved with settling claims made under insurance contracts. The unauthorized insurers and surplus lines chapter is concerned not only with unauthorized insurers who sell insurance in Alabama, but also with unauthorized insurers who "operate" in Alabama. "Operating" in Alabama would include settling claims made pursuant to an insurance contract.
Custard argues that § 27-10-2 is unconstitutionally vague in that, Custard says, it is unclear what conduct by an adjuster is prohibited by the term "directly or indirectly" as it relates to investigating or adjusting a claim. This argument is without merit. From a reading of the statute, it is clear that the term "directly and indirectly" covers any conduct related to investigating or adjusting a claim.
Based on the foregoing, Youngblood's summary judgment against Custard is due to be affirmed.[3]
OPINION OF JULY 26, 1996, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
MADDOX and ALMON, JJ., concur in the opinion and in the overruling of the application.
HOUSTON, J., concurs in the opinion in part and concurs in the result in part, and concurs in the overruling of the application.
BUTTS, J., concurs in the result of the opinion and in the overruling of the application.
HOOPER, C.J., and COOK, J., dissent from the opinion and dissent from the overruling of the application.
SHORES, J., recuses.
HOUSTON, Justice (concurring in part and concurring in the result in part).
I concur with the majority's "due process" discussion.
I concur in the result as to the remainder of the opinion. There is no equal protection provision in the Constitution of Alabama of 1901. See Pinto v. Alabama Coalition for Equity, 662 So. 2d 894 (Ala.1995) (Houston, J., concurring in the result); Ex parte Bunting Plastic Surgery Clinic, P.C., 624 So. 2d 1075, 1076 (Ala.1993) (Houston, J., concurring specially); Ex parte Bronner, 623 So. 2d 296, 300 (Ala.1993) (Houston, J., concurring in the result); and Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 174-78 (Ala.1991) (Houston, J., concurring in the result).
COOK, Justice (dissenting).
I respectfully dissent. Custard challenges Ala.Code 1975, § 27-10-2(b), as violating the equal protection guarantees of the Constitution of Alabama. Specifically, Custard argues that § 27-10-2(a) imposes liability upon soliciting insurance agents and insurance brokers upon a finding of "willfulness," and that § 27-10-2(b) imposes a "no-fault" standard of liability upon insurance adjusters. The majority concludes that even if Custard's construction of § 27-10-2 is correct, the disparity in treatment of insurance procurers does not violate the constitution.
I would eliminate any constitutional infirmity in the statute simply by construing both subsections as containing a willfulness requirement. In particular, the phrase "[a]ny person," used in subsection (a), creates a *218 comprehensive, general class of insurance representatives, and that class necessarily includes "adjusters," the smaller class treated in subsection (b). Because adjusters necessarily compose a subset of the larger, general classall members of which are subject to liability for willfulnessthey are, as a logical matter, also subject to liability under the same species of scienter. I would, therefore, construe "willfully" in subsection (a) as referring equally to the class of persons treated in subsection (b), which contains no express culpability standard.
This interpretation is compelled by the following well-established rule of statutory construction: "[W]here the validity of a statute is assailed, and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other [of which] it would be valid, the court should adopt the construction which would uphold it." McCall v. Automatic Voting Mach. Corp., 236 Ala. 10, 13, 180 So. 695, 697 (1938). In other words, "[w]hen the constitutionality of a statute is questioned, it is the duty of the courts to adopt a construction that will bring it in harmony with the Constitution, if its language will permit, even though the construction which is adopted does not appear to be as natural as the other." Id. Thus, in construing § 27-10-2(a) and (b), I must assume that the Legislature knew how to create a subclass of insurance adjusters and expressly make it subject to liability for a lesser degree of scienter, but must notin the absence of such express languageassume that it intended to jeopardize the constitutionality of the statute by creating such an anomaly. See Pruett v. Patton, 288 Ala. 710, 714, 265 So. 2d 130 (1972) ("legislative body is presumed to intend that legislative acts shall not violate the Constitution, and be utterly void").
I would reverse the judgment and remand the cause for further proceedings pursuant to the fault-based standard of culpability applied equally as to all defendants. For these reasons, I respectfully dissent.
HOOPER, C.J., concurs.
[1] The attorney general was notified of the constitutional challenge, in compliance with § 6-6-227, Ala.Code 1975.
[2] We realize that our interpretation of this phrase, if this phrase were being interpreted alone, would contradict general rules of grammar. However, viewing the phrase in light of the overall legislative purpose of protecting Alabama citizens from foreign insurance companies operating without authority, we conclude that placing liability on those who "aid" rather than on those who "willfully aid," as Custard argues the legislature should have done, conforms to the overall spirit of the act. Additionally, applying a "willful" standard to conduct on the part of agents or brokers and a "no fault" standard to conduct on the part of adjusters does not violate the right to equal protection, as is discussed in the next paragraph.
[3] Custard contends that in our original opinion we erred in not applying BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). This present case is an interlocutory appeal from a partial summary judgment as to liability only; no damages have been assessed. Therefore, Custard's argument is irrelevant and premature. Also, we note that BMW was released in May 1996 and that our original opinion in this case was released in July 1996. While this case was pending, Custard did not move to supplement its brief to make an argument regarding BMW. | November 27, 1996 |
4686e15c-081d-4fbc-b673-f7ae8593803d | Ex Parte Cobb | 703 So. 2d 871 | 1941500 | Alabama | Alabama Supreme Court | 703 So. 2d 871 (1996)
Ex parte Donald Lee COBB.
(Re Donald Lee Cobb
v.
State).
1941500.
Supreme Court of Alabama.
August 2, 1996.
Order Overruling Rehearing October 25, 1996.
*873 Brian Dowling, Dothan, for petitioner.
Jeff Sessions and Bill Pryor, attys. gen., and J. Thomas Leverette, asst. atty. gen., for respondent.
ALMON, Justice.
This Court issued the writ of certiorari to determine whether a person's fists can be "deadly weapons" or "dangerous instruments" under the definitions of these terms in § 13A-1-2(11) and (12), Ala.Code 1975. Donald Lee Cobb was convicted of assault with a dangerous instrument for hitting an adult female in the face with his fists. The Court of Criminal Appeals affirmed Cobb's conviction, by an unpublished memorandum. Cobb v. State, 678 So. 2d 801 (Ala.Crim.App. 1995) (table).
Cobb was charged by separate indictments with assault in the first degree on Wanda Fassett and second-degree assault on her husband, David Fassett, based on Cobb's actions in a fight that occurred outside a Dothan nightclub. The indictments charged Cobb with using a deadly weapon or dangerous instrument, specifically his fists, to inflict injuries upon the victims. The circuit court instructed the jury to decide whether, under the circumstances, Cobb's fists were "highly capable of causing death or serious physical injury," and it instructed the jury that if they were, then they were dangerous instruments. The jury found Cobb guilty of assault in the first degree on Wanda Fassett and assault in the third degree on her husband. Cobb was sentenced to five years' imprisonment and was fined $250 on the first-degree conviction and was sentenced to one year and fined $250 on the third-degree conviction. Under the court's instructions, the jury could have returned these verdicts only by finding that Cobb's fists constituted dangerous instruments in regard to the assault on Wanda Fassett but not in regard to the assault on David Fassett.[1] Therefore, the issue presented in the petition pertains only to Cobb's conviction for assault with a dangerous instrument on Wanda Fassett. Cobb's attack on his conviction for third degree assault on David Fassett presents no merit, so the judgment of the Court of Criminal Appeals is affirmed insofar as it affirmed that conviction.
Under the Alabama Criminal Code, the use of a deadly weapon or a dangerous instrument elevates a simple assault, assault in the third degree, § 13A-6-22(a)(1), which is a misdemeanor, to an assault in the second degree, a class C felony, § 13A-6-21(a)(2). Also, the infliction of "serious physical injury" without the use of a deadly weapon or dangerous instrument is assault in the second degree, § 13A-6-21(a)(1), but the use of a deadly weapon or a dangerous instrument elevates the offense to assault in the first degree, a class B felony. A person commits an assault in the first degree when, "[w]ith the intent to cause serious physical injury to *874 another person, he causes serious physical injury to any person by means of a deadly weapon or dangerous instrument," § 13A-6-20(a)(1); Cobb was convicted under this provision.
In 1977 the legislature adopted the Alabama Criminal Code, which became effective in 1980. Ala.Code 1975, § 13A-1-1 et seq. For the first time, the legislature defined "deadly weapon" and "dangerous instrument." Section 13A-1-2(11) defines a "deadly weapon" as:
Section 13A-1-2(12) defines a "dangerous instrument" as:
This Court has never addressed the question whether a person's fist or hand fits the statutory definition of a deadly weapon or a dangerous instrument.[2] However, shortly after the adoption of the Criminal Code, the Court of Criminal Appeals held that, depending on the manner and circumstances of their use, a person's fists could be considered "deadly weapons" or "dangerous instruments" under the statutory definitions. Stewart v. State, 405 So. 2d 402 (Ala.Crim. App.1981).
In Stewart v. State the court held that "the use of an adult man's fist to beat a [17-month-old] child allows those fists to be classified as a deadly weapon or a dangerous instrument." Stewart, 405 So. 2d at 405. In reaching this conclusion, the court stated:
Id. (Emphasis omitted.)
The Stewart court based its holding on a misplaced analogy to the reasoning in Helton v. State, 372 So. 2d 390 (Ala.Crim.App.1979), which was decided before the Code definition of "deadly weapon" or "dangerous instrument" became effective. In Helton the defendant was convicted of assault with intent to murder for repeatedly kicking the victim in the face with his boot-clad foot. Helton, 372 So. 2d at 391. The central issue in Helton was whether the blows inflicted by Helton were sufficient to support an inference of malice, which was necessary for a conviction of assault with intent to murder. Thus, the court had to determine whether kicking the victim in the face with a boot constituted the use of a deadly weapon, or, in the alternative, exhibited such violence and brutality that an intent to murder could be inferred. Id., 372 So. 2d at 393.
The Helton court relied on the theory that it is the use of the weapon and not solely its nature that determines if it is likely to cause death or injury. Id. To illustrate that fact, Judge Bowen, writing for the court, cited several cases in which an object that would not normally be considered a deadly weapon or dangerous instrument for example, an *875 automobile crank, a large stone, a bottle, an aluminum chair, or a file was used to inflict injury on another person. After citing those cases, the court concluded: "[T]hus we cannot state, as a matter of law, that kicking with a shoe-clad foot may not constitute assault with a deadly weapon." Id. (emphasis added).
In Helton, the court was focusing on the fact that the defendant kicked the defendant with his boot, and the boot, not the foot, was held to be a deadly weapon. This point is made clearer by the fact that the circuit court instructed the jurors that if they found that a boot or shoe was used in such a manner that it became a deadly weapon then they could infer an intent to take life. Id., 372 So. 2d at 394-95 n. 1. The court did quote an A.L.R. annotation as stating that while feet or shoes are not deadly weapons per se, the manner of their use in particular situations may make them deadly weapons. A reading of the entire case, however, clearly shows that the holding was based on the fact that the defendant used his boots to inflict the injury.
Therefore, it was not entirely correct for the court in Stewart to write the following:
Stewart, 405 So. 2d at 405 (citation omitted). The same principles could not apply to Stewart's fist, because Helton relied upon the fact that the defendant wore a pair of boots objects that would not normally be considered deadly weapons, but, when used to kick someone in the face, may become deadly weapons or dangerous instruments.[3]
Aside from the fact that we find the Stewart court's reliance on Helton misplaced, we also hold that the Stewart court erred in concluding that fists may be included in the definitions found in §§ 13A-1-2(11) and (12) of the Criminal Code. In regard to § 13A-1-2(11), the Stewart court stated that "there is no limitation expressed in § 13A-1-2(11) which would prevent human fists from being considered a `deadly weapon' under appropriate circumstances." Stewart, 405 So. 2d at 405. We conclude that under a reasonable reading of the statutory definitions, fists cannot be considered "deadly weapons" or "dangerous instruments."
It is well settled that "[w]ords used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says." Tuscaloosa County Commission v. Deputy Sheriffs' Association of Tuscaloosa County, 589 So. 2d 687, 689 (Ala.1991). Furthermore, if the language is clear and unambiguous, then there is no room for judicial construction. Giving the words found in the definition of "deadly weapon" in § 13A-1-2(11) their "natural, plain, ordinary, and commonly understood meaning," we think it clear that the legislature intended to include only inanimate objects, i.e., "anything manifestly designed, made or adapted for the [purpose] of inflicting death or serious physical injury." No language in § 13A-1-2(11) could be reasonably interpreted to indicate that this definition was intended to apply to a bare human fist.
However, even to the extent that it could be argued that the definition of "deadly weapon" is ambiguous, the ejusdem generis principle of statutory construction is applicable to determine the intent of the legislature. Under that principle, where general words follow specific words in a statute, the general words are construed to embrace only objects similar to those objects enumerated by the specific words. This rule is equally applicable when specific words follow general words, as in § 13A-1-2(11). 2A Singer, Statutes and Statutory Construction, § 47.17 (5th ed.1992).
The definition states that a deadly weapon is a "firearm or anything manifestly designed, *876 made or adapted for the purposes of inflicting death or serious physical injury." It then lists 12 specific objects that are "designed as weapons and are easily and readily susceptible of producing death or serious injury." Commentary, Ala.Code 1975, § 13A-1-2(11). Included in that list are various types of firearms, knives, and objects designed to deliver blunt force trauma. Applying the rule of ejusdem generis to § 13A-1-2(11), we conclude that the legislature intended to include as deadly weapons only things that are similar to the listed weapons. Only objects that are "designed, made or adapted for the purposes of inflicting death or serious physical injury" fit the definition of "deadly weapon." It is clear that a human fist does not fall into this class.
In regard to dangerous instruments and § 13A-1-2(12), the Stewart court correctly stated that the "emphasis on `use' under the circumstances" was codified in the definition of "dangerous instrument," 405 So. 2d at 405. However, it is not clear from the language of the statute that the legislature intended to include fists in the definition of "dangerous instrument." The Code defines a "dangerous instrument" as:
§ 13A-1-2(12) (emphasis added).
In common language, a fist is not described as, nor is it considered to be, an "article" or a "substance"; therefore, it is clear that these words were not intended to include fists. However, whether a fist could be considered as an "instrument" is less clear. In one sense the term "instrument" describes a means by which something is achieved, while in another sense it refers to a utensil or a device; therefore, an ambiguity exists in the meaning of "instrument." When a statute contains an ambiguous term or phrase, a court strives to determine the intent of the legislature and to give effect to that intent.
When the legislative intent behind a statute is not clear, the meaning of doubtful words may be determined by reference to their relationship with other associated words. Therefore, when two or more words are grouped together, and those words ordinarily have a similar meaning, but are not equally comprehensive, an ambiguous word may be defined by the accompanying words. Ordinarily, the coupling of words denotes an intention that they should be understood in the same general sense. 2A Singer, Statutes and Statutory Construction, § 47.16 (5th ed.1992). This maxim of statutory construction, noscitur a sociis, has been embraced by this Court as an aid in construing ambiguous statutory language. Winner v. Marion County Commission, 415 So. 2d 1061 (Ala. 1982).
"Article" and "substance" are used in § 13A-1-2(12) to denote physical, inanimate objects or items. We conclude that by associating the word "instrument" with these two words the legislature intended for it to refer to utensils or implements, not parts of the human body.
The Supreme Court of Kentucky reached the same result in a case presenting the very issue we are considering here. In Roney v. Commonwealth, 695 S.W.2d 863 (Ky.1985), the court had to determine if the general assembly intended to include fists in its statutory definition of "dangerous instrument." Roney, 695 S.W.2d at 864. Kentucky's statutory definition was identical to the definition in our Code. The court concluded that the general assembly did not intend for body parts to be considered as dangerous instruments. The court stated:
Roney, 695 S.W.2d at 864.
The commentary to § 13A-1-2 states that most of the definitions found in *877 this section were adopted from the statutes of Michigan, New York, and Texas and the proposed New Federal Criminal Code. Commentary, Ala.Code 1975, § 13A-1-2. It appears that our definition of "dangerous instrument" was adopted from the New York statute. The New York Penal Law defines "dangerous instrument" as:
N.Y. Penal Law § 10.00(13). The courts of New York have held that parts of the human body cannot be dangerous instruments unless they are at least covered with apparel or objects that aggravate their use. People v. Johnson, 122 A.D.2d 341, 504 N.Y.S.2d 311 (1986). In Johnson, the defendant was convicted of assault in the second degree for using his bare hands to fracture the ribs of a nine-month-old infant. Johnson, 122 A.D.2d at 341-42, 504 N.Y.S.2d at 312. The Appellate Division reversed the conviction because it was "uncontested that [the] defendant used only his hands to inflict the injury." Id., 122 A.D.2d at 343, 504 N.Y.S.2d at 313-14. See also, People v. Davis, 96 A.D.2d 680, 466 N.Y.S.2d 540 (1983), and People v. Peet, 101 A.D.2d 656, 475 N.Y.S.2d 898 (1984), aff'd, 64 N.Y.2d 914, 488 N.Y.S.2d 379, 477 N.E.2d 620 (1985). While the interpretations of the New York appellate courts are not binding on this Court, they are persuasive authority, because of the fact that our legislature adopted our definition from the New York Penal Law.
In Brock v. State, 555 So. 2d 285, 287 (Ala. Crim.App.1989), the Court of Criminal Appeals quoted an annotation as stating that the view that fists can be considered deadly weapons or dangerous instruments is a minority view. Annot., Parts of the Human Body as Dangerous Weapons, 8 A.L.R.4th 1268 (1981). Our research indicates that the better-reasoned cases do not allow body parts, without more, to be considered deadly weapons or dangerous instruments.
Further evidence that the legislature did not intend for fists to be considered deadly weapons or dangerous instruments is the fact that a person can be convicted for seconddegree assault for intentionally inflicting serious physical injury on another person. Ala. Code 1975, § 13A-6-21(a)(1). This section does not mention the use of a deadly weapon or dangerous instrument; instead, it simply requires "serious physical injury." However, § 13A-6-20(a)(1) provides that a person who causes serious physical injury to any person by means of a deadly weapon or dangerous instrument commits assault in the first degree. If the legislature intended fists to be considered as deadly weapons or dangerous instruments, then there would be no objective basis for distinguishing a first-degree assault under § 13A-6-20(a)(1) from a second-degree assault under § 13A-6-21(a)(1). If fists may be dangerous instruments, there is no basis for determining whether an offense constitutes a first- or second-degree assault. If the elevation in seriousness is made to depend upon the use of an implement apart from the assailant's own body, then there is a rational basis for this elevation and fair notice to an assailant that the use of a weapon or injurious implement will increase the seriousness of his crime.
Kahalley v. State, 254 Ala. 482, 483, 48 So. 2d 794, 795 (1950). See also Esco v. State, 278 Ala. 641, 179 So. 2d 766 (1965); State v. Gooden, 570 So. 2d 865 (Ala.Crim.App.1990).
We hold that the use of fists or other body parts cannot constitute the use of a "deadly weapon" or "dangerous instrument" as those terms are defined in § 13A-1-2(11) and § 13A-1-2(12).
*878 To the extent that Stewart v. State, 405 So. 2d 402 (Ala.Crim.App.1981), held that hands or fists may be deadly weapons or dangerous instruments, that case is overruled, and all cases following that holding are, to that extent, likewise overruled.
For the foregoing reasons, the judgment of the Court of Criminal Appeals, insofar as it affirmed Donald Lee Cobb's conviction for assault in the first degree on Wanda Fassett, is reversed. The judgment is affirmed insofar as it affirmed Cobb's conviction for assault in the third degree on David Fassett.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, and COOK, JJ., concur.
KENNEDY, J., concurs in the result.
HOUSTON and BUTTS, JJ., concur in part and dissent in part.
KENNEDY, Justice (concurring in the result).
I concur in the result of the majority opinion that under the specific facts of this case, the defendant's fists could not be considered a deadly weapon or dangerous instrument under § 13A-6-20(a)(1), Ala.Code 1975. However, under certain situations, the use of fists could be a deadly weapon or dangerous instrument.
BUTTS, Justice (concurring in part and dissenting in part).
I think the Court of Criminal Appeals properly affirmed both convictions. I would affirm as to both. I accept the rationale of Stewart v. State, 405 So. 2d 402 (Ala.Crim. App.1981).
HOUSTON, J., concurs.
ALMON, Justice.
In accordance with Ex parte Edwards, 452 So. 2d 508 (Ala.1984) and cases following Edwards, e.g., Ex parte Roberts, 662 So. 2d 229 (Ala.1995) the Court of Criminal Appeals is instructed to remand for the circuit court to enter a judgment of conviction of second degree assault for the assault on Wanda Fassett and to sentence Cobb for that conviction. The only difference between § 13A-6-20(a)(1), the offense of assault in the first degree, for which Cobb was convicted, and § 13A-6-21(a)(1), assault in the second degree by reason of infliction of serious physical injury, is the requirement in § 13A-6-20(a)(1) that a defendant use a deadly weapon or dangerous instrument to inflict serious physical injury. The jury thus found all of the elements necessary to return a verdict of guilty under § 13A-6-21(a)(1), and, pursuant to the Edwards line of cases, a judgment of conviction on that lesser included offense is due to be entered against Cobb.
INSTRUCTIONS ISSUED; APPLICATION OVERRULED.
HOOPER, C.J., and MADDOX, SHORES, and COOK, JJ., concur.
KENNEDY, J., concurs in the result.
HOUSTON and BUTTS, JJ., concur in part and dissent in part.
[1] The judge instructed the jury with respect to the charges regarding the assault on David Fassett as follows:
"Under the indictment that the grand jury returned, what the State would have to prove, beyond a reasonable doubt, to convict Mr. Cobb of second degree assault on Dave Fassett is as follows: That he intended to cause physical injury to Dave Fassett. That he caused physical injury to Dave Fassett. And, he did it by means of a dangerous instrument, his fist. If the State proves all three of those things, beyond a reasonable doubt, by the evidence, it is entitled to a conviction on the charge of second degree assault on Dave Fassett. If it does not prove any one of those three things beyond a reasonable doubt, Mr. Cobb is entitled to an acquittal on the charge of assault in second degree on Dave Fassett. And you may consider whether the State proved the charge of third degree assault, with respect to Dave Fassett. And, it can do it in two ways. It can prove beyond a reasonable doubt, that, number one, he intended to cause physical injury to Mr. Fassett. And, number two, he did cause physical injury. Or, that he recklessly caused physical injury to Mr. Fassett."
[2] Curiously, of the cases in which the Court of Criminal Appeals has held that body parts may be deadly weapons or dangerous instruments, only in Ray v. State, 580 So. 2d 103 (Ala.Crim. App.1991), did the defendant petition for the writ of certiorari. See McCray v. State, 643 So. 2d 610 (Ala.Crim.App.1992); Nelson v. State, 462 So. 2d 962 (Ala.Crim.App.1984); Baker v. State, 441 So. 2d 1061 (Ala.Crim.App.1983); Brock v. State, 555 So. 2d 285 (Ala.Crim.App.1989); and Hollis v. State, 417 So. 2d 617 (Ala.Crim.App. 1982). Our denial of the writ in Ray is not to be taken as a ruling on the merits.
[3] For a discussion of the distinction between kicking with a shod foot as compared to kicking someone with a bare foot, see Annot., Kicking as Aggravated Assault, or Assault with Dangerous or Deadly Weapon, 19 A.L.R. 5th 823 (1994). | October 25, 1996 |
025b46cf-476a-4494-a353-a70a535bc6b1 | Ex Parte ADR | 690 So. 2d 1208 | 1951541 | Alabama | Alabama Supreme Court | 690 So. 2d 1208 (1996)
Ex parte A.D.R.
(Re A.D.R. v. State).
1951541.
Supreme Court of Alabama.
November 27, 1996.
Theresa S. Dean, Opelika, for Petitioner.
Jeff Sessions, Atty. Gen., and LaVette Lyas-Brown, Asst. Atty. Gen., for Respondent.
SHORES, Justice.
A.D.R., a juvenile, was initially brought to the Lee Juvenile Court on four counts of capital murder, those four counts being based on the deaths of three people. After a hearing, the juvenile court determined that A.D.R. should be transferred to the circuit court to be tried as an adult. Neither A.D.R.'s appointed counsel nor the juvenile judge informed A.D.R. that he could appeal the transfer order. After the 14-day period for appeal (see Rule 28, Ala. R. Juv. P.) had expired, the circuit court appointed new counsel to represent A.D.R.
The new attorney filed a motion in the juvenile court for a rehearing on the transfer order, but the motion was denied. A.D.R. appealed the juvenile court's denial, but the Court of Criminal Appeals on June 16, 1995, dismissed the appeal, without opinion. A.D.R. v. State, 678 So. 2d 816 (Ala.Crim.App.1995) (table). The new attorney then attacked the transfer order by filing with the juvenile court what the attorney called a Rule 32, Ala. R.Crim. P., petition for "relief from judgment," based upon allegations of ineffective assistance of counsel. The juvenile court dismissed the petition. A.D.R. appealed the dismissal; the Court of Criminal Appeals dismissed the appeal, with an unpublished memorandum stating that Rule 32 does not apply to juvenile transfer hearings and citing J.M.V. v. State, 651 So. 2d 1087, 1089 (Ala. Crim.App.1994). A.D.R. v. State, 687 So. 2d 231 (Ala.Crim.App.1996) (table). We granted A.D.R.'s petition for certiorari review; we reverse and remand.
A.D.R. cites Ex parte Cruse, 474 So. 2d 109 (Ala.1985), in which we considered a juvenile's claim of ineffective assistance of counsel and held that "[t]he decision of counsel appointed by the juvenile court not to appeal the transfer order, without [the juvenile's] knowledge, consent, or approval, denied him the constitutional right to effective assistance of counsel at a critical stage in the proceedings against him." Id. at 111. Ex parte *1209 Cruse relied on Wainwright v. Simpson, 360 F.2d 307 (5th Cir.1966). In Wainwright, relief was granted to a habeas corpus petitioner whose court-appointed trial counsel, although believing that there were meritorious grounds for appeal, had deliberately not moved for a new trial or filed a notice of appeal.
A.D.R. filed a Rule 32 "petition for relief from judgment." The Court of Criminal Appeals held in its unpublished memorandum that Rule 32 relief is available only after a conviction and that Rule 32 affords no mechanism for a court to consider a claim of ineffective assistance of counsel at a transfer hearing, citing J.M.V. v. State, 651 So. 2d 1087, 1089 (Ala.Crim.App.1994). In J.M.V. the Court of Criminal Appeals stated that Rule 32 "does not apply to juvenile transfer hearings." Id. at 1089. By its terms, Rule 32 applies to "any defendant who has been convicted of a criminal offense."
While a transfer order is not a conviction, this Court has held that a transfer hearing is a critical stage in a criminal proceeding and therefore requires the assistance of competent counsel. Neither the Alabama Rules of Criminal Procedure nor the Alabama Rules of Juvenile Procedure address the question of how a court may consider a juvenile's claims of ineffective assistance of counsel in regard to the transfer hearing, where no appeal is taken. The petition for the writ of error coram nobis has historically been available for a criminal defendant to raise allegations of ineffective assistance of counsel. Thompson v. State, 525 So. 2d 820 (Ala.1985). In fact, in Cruse, the juvenile raised the issue of his counsel's failure to appeal the transfer order, by petitioning for the writ of error coram nobis. 474 So. 2d at 109. Rule 32, Ala. R.Crim. P., incorporates the procedure for filing what was classified under prior practice as a petition for the writ of error coram nobis. See H. Maddox, Alabama Rules of Criminal Procedure,§ 32.0 at 782 (1990). Because no other procedure is provided by our procedural rules, A.D.R. has raised the issue of ineffective assistance of counsel by the use of Rule 32, which incorporated the petition for the writ of error coram nobis. At this point we are faced with either allowing A.D.R. to use Rule 32 to raise the issue of ineffective assistance of counsel in regard to the transfer hearing, or requiring him to await trial and, if convicted, raise it on appeal of the conviction or by a Rule 32 petition. A.D.R. awaits trial on capital murder. It would be a waste of time and money for the circuit court to try him as an adult and then, if he is convicted, for the appellate courts to reverse because he had been provided ineffective assistance of counsel.[*]
This Court, in Ex parte S. B., 650 So. 2d 953 (Ala.1994), noted that Rule 24, Ala. R. Juv. P., requires the trial judge to explain to the parties their rights:
650 So. 2d at 954. No explanation of the right of appeal was given to A.D.R. by the trial judge or by his appointed counsel.
Justice requires that we reverse the judgment of the Court of Criminal Appeals and remand this case with instructions to allow an out-of-time appeal of the transfer order.
The facts of this case indicate a need to amend the Alabama Rules of Juvenile Procedure or the Alabama Rules of Criminal Procedure to designate the procedure to be followed in a fact situation such as this. Until our procedural rules are amended to deal specifically with this problem, this opinion *1210 should serve to remind juvenile judges of the duty to ensure that a juvenile is notified of the right to appeal from a transfer order, and it likewise should serve to remind counsel representing a juvenile to inform the client of his or her rights.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOOPER, C.J., and ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur.
MADDOX, J., dissents.
[*] [Note from the Reporter of Decisions: Before the Supreme Court issued this opinion, the defendant A.D.R. had been tried on one count of capital murder, convicted, and, on February 1, 1996, sentenced to life imprisonment (Lee Circuit Court, No. CC-95-510). That conviction was, as of November 27, 1996, pending on appeal in the Court of Criminal Appeals, docket no. CR-95-0939.] | November 27, 1996 |
4dcb6672-b7d8-4691-87da-a91fee888d33 | Richardson v. PSB Armor, Inc. | 682 So. 2d 438 | 1941631 | Alabama | Alabama Supreme Court | 682 So. 2d 438 (1996)
James RICHARDSON and Lisa Richardson
v.
PSB ARMOR, INC., et al.
1941631.
Supreme Court of Alabama.
September 13, 1996.
*439 L. Andrew Hollis, Jr. of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, and Rufus R. Smith, Dothan, for plaintiffs James Richardson and Lisa Richardson.
S. Allen Baker, Jr. and Teresa G. Minor of Balch & Bingham, Birmingham, for defendants Southern Company Services, Inc. and Alabama Power Company.
Alan C. Livingston of Lee & McInish, Dothan, for defendant PSB Armor, Inc. (filed brief taking" no position on the certified questions").
PER CURIAM.
The United States District Court for the Middle District of Alabama has certified to this Court several questions relating to the Alabama's Workers' Compensation Act, and, particularly, when it is proper under that Act for an employer's "service company," or a "group thereof," to be deemed to be an "employer."
Underlying the certified questions are the following facts:
In May 1993, James Richardson, an employee of the Farley Nuclear Plant in Dothan, received an on-the-job injury. Workers' compensation benefits were awarded to Richardson from his employer, Southern Nuclear Operating Company ("Southern Nuclear").
Southern Nuclear, Richardson's statutory "employer," operates the Farley Nuclear Plant for the plant's owner, Alabama Power Company ("APCo"). Southern Nuclear handles the plant's day-to-day operations, under a contract between it and APCo. In turn, Southern Nuclear receives support services from Southern Company Services, Inc. ("SCSI"), under a January 1991 contract between it and SCSI.[1] All three companies APCo, which owns the plant; Southern Nuclear, which manages the plant's day-to-day operations for APCo (and which employs Richardson); and SCSI, which provides support services to Southern Nuclear in the operation of the plantare wholly owned subsidiaries of The Southern Company.
In January 1994, Richardson sued APCo, SCSI, and other entities in the United States District Court for the Middle District of Alabama. He sought damages from APCo and SCSI for his work-related injuries. APCo and SCSI both denied liability and each has moved for a summary judgment.
It is undisputed that if APCo or SCSI is properly afforded "employer" status under the Alabama Workers' Compensation Act, then it is entitled to immunity from Richardson's claim. In this regard, APCo contends that it is immune because the definition of "employer" under the Alabama Workers' Compensation Act includes the phrase "a group thereof" and it claims to come within that phrase. SCSI argues that it is entitled to the status of an "employer," because, it says, as a "service company" for a self-insured employer, Southern Nuclear, it also falls within the statutory definition of "employer."
Regarding APCo and SCSI's summary judgment motions, the district court has certified the following questions to this Court:
The Alabama Workers' Compensation Act provides an exclusive remedy for the employee injured in a workplace accident:
Ala.Code 1975, § 25-5-52. Section 25-5-53 similarly provides, in pertinent part:
Thus, whether a person or entity is an "employer" within the meaning of the Act determines whether the employee can maintain a civil lawsuit against that person or entity. In this context, whether the person or entity the employee wishes to sue is deemed an "employer" is of critical significance.
We are called upon initially to address the question whether a "service company" that does not assist the employer in regard to its workers' compensation benefits plan fits within this definition of "employer." Richardson argues that the term "service company for a self insurer" applies only to those service companies that assist with the administration of the employer's workers' compensation program. We agree.
In determining the legislative intent, the "polestar" of statutory construction, see Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510 (1909); Ex parte Jordan, 592 So. 2d 579, 581 (Ala.1992), we are guided by Ala.Code 1975, § 25-5-53, through which the legislature has expressly stated which nonemployer entities enjoy statutory immunity. That section provides, in pertinent part, that "immunity from civil liability for all causes of action except those based on willful conduct shall ... extend to the workers' compensation insurance carrier of the employer [or] to a ... corporation responsible for the servicing and payment of workers' compensation claims for the employer."
Note that under § 25-5-53 the grant of immunity to a corporate "service *441 company" is expressly tied to the servicing and administering of a workers' compensation program. Reading this section in pari materia with § 25-5-1(4), which defines "employer," we think it clear that the reference in § 25-5-1(4) to "a service company for a self-insurer" was intended to apply to companies that administer the workers' compensation plan of a self-insured employer.
Accordingly, as to the first certified question"[w]hether a service company that does not provide assistance related to workers' compensation benefits qualifies as a `service company for a self-insurer' and thus, is an `employer'" we answer in the negative.
As to the second certified question whether the services provided by SCSI to Southern Nuclear under a January 1995 agreement between them renders SCSI a service company "employer" under § 25-5-1(4)we observe that, given our answer to the first question, we must answer this second question in the negative. That agreement provides for SCSI to act as a service company of Southern Nuclear, but SCSI does not assert that it contracted by that agreement to service or administer Southern Nuclear's workers' compensation program, and it is undisputed that SCSI did not service or administer that program for Southern Nuclear.
The third certified question is "[w]hether a corporation-owner of a plant, which relinquishes operating control to a sister company ... wholly owned by the same parent corporation ... is a `group' of [an] `employer' ..., where the corporation-owner indirectly pays the employee's wages and workers' compensation benefits."[2] We answer this third question in the negative.
APCo and Southern Nuclear are both subsidiaries under the corporate umbrella of The Southern Company. In December 1991, APCo and Southern Nuclear entered into an agreement providing that Southern Nuclear would operate APCo's Farley Nuclear Plant and that APCo would be entitled to all power generated at the plant. Southern Nuclear charges APCo for its costs in operating the facility. Those costs would include the wages and benefits Southern Nuclear pays its employees.
It bears emphasis, however, that these two companies are wholly separate in their operations and as legal entities. For example, APCo is an Alabama corporation in the business of selling electrical power, while Southern Nuclear is a separate Delaware corporation in the business of operating nuclear power plants.
Simply stated, the conclusion is inescapable that, irrespective of the fact that Southern Nuclear charges APCo for its costs of operation, the relationship of these separate companies cannot reasonably be construed so as to make APCo a "group" of Southern Nuclear. Also, to answer the last certified question, we conclude that our answer to the third question is not altered by the existence of a contract between APCo and Southern Nuclear wherein they essentially agree that APCo will be deemed to be an "employer" for purposes of workers' compensation immunity. In this regard, we are not persuaded by APCo's arguments that we should impose the terms of this agreement on a person not a party to the agreement (and not employed by APCo), so as to render APCo immune from that person's work-related claims. Accordingly, we answer the last question in the negative.
QUESTIONS ANSWERED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
COOK, J., dissents.
HOUSTON, Justice (concurring in the answers to questions (a) and (b) and dissenting to the answers to questions (c) and (d)).
I would indulge in the privilege reserved by this Court to restate the issue or issues *442 and to determine the manner in which the answers are to be given (see Citizens & Southern Factors, Inc. v. Small Business Administration, 375 So. 2d 251, 253 n. 2 (Ala. 1979)), and I would restate questions (c) and (d) as the following single question:
Whether a corporate owner of a plant that relinquishes operating control to a sister company, which is wholly owned by the same parent corporation as the owner of the plant, is a "group" of the employee's "employer" within the meaning of the Alabama Workers' Compensation Act, where the corporate owner indirectly pays the employee's wages and workers' compensation benefits and where the operating agreement transferring control provides that "[i]t is the intent of [the corporate owner] and [the sister company] that for purposes of workmen's compensation [the corporate owner] not be exposed to greater liability by virtue of this agreement than [it] would have if it had utilized [its] employees to perform operation and maintenance of the plant?"
I would answer this question in the affirmative. I believe the operating agreement is a relevant consideration in determining whether the corporate owner is a part of the "group" of its sister company, which operates the plant pursuant to that operating agreement.
[1] SCSI provided Southern Nuclear with services such as engineering, accounting, and data processing.
[2] As noted above, the definition of "employer" at § 25-5-1(4) includes "a service company for a self-insurer or any person, corporation, copartnership, or association, or group thereof." (Emphasis added.) | September 13, 1996 |
421bd708-1da3-4eac-bab2-853c8624adc0 | Dollar v. State | 687 So. 2d 209 | 1950936 | Alabama | Alabama Supreme Court | 687 So. 2d 209 (1996)
Ex parte State of Alabama.
(Re Grady DOLLAR
v.
STATE).
1950936.
Supreme Court of Alabama.
September 6, 1996.
Jeff Sessions, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for Petitioner.
Mark A. Dutton, Moulton, for Respondent.
SHORES, Justice.
We granted certiorari review to determine whether an error in a trial court's order of restitution was correctable under Rule 29, Ala.R.Crim.P.
The respondent, Grady Dollar, pleaded guilty to a charge of arson in the second degree and a charge of arson in the third degree. He was sentenced to 2 years' imprisonment for the conviction of arson in the second degree and 12 months for the conviction of arson in the third degree, the two sentences to be served concurrently. Dollar was ordered to pay $50 to the Victims' Compensation Fund, court costs, and restitution.
On May 12, 1995, the trial court held a hearing on the claims for restitution submitted by the victim of the fire and her insurance company, based on their losses. The circuit court on that same day entered an order of restitution in favor of the victim, Amy Brewer, in the amount of $25,403.
On June 27, 1995, the trial court, sua sponte, entered the following amended order, which ordered that restitution of $22,740 be paid to American Bankers Insurance Company:
Based on Pickron v. State, 475 So. 2d 599 (Ala.1985), and Rule 24.2, Ala.R.Crim.P., the Court of Criminal Appeals held that the trial court no longer had jurisdiction over the matter when it amended the restitution order. Dollar v. State, 687 So. 2d 207 (Ala. Crim.App.1996). We reverse, because we conclude that the amendment of the restitution order was authorized by Rule 29, Ala. R.Crim.P. That rule provides:
The committee comments to Rule 29 state that Rule 29 is taken directly from Rule 60(a), Ala.R.Civ.P. Because Rule 29 is taken directly from Rule 60(a), Ala.R.Civ.P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 919 (2d ed.1994).
In Cooper v. Cooper, 494 So. 2d 109 (Ala. Civ.App.1986), a divorce judgment divided the parties' assets; in that judgment the husband received a 1977 Chevrolet automobile the court had intended to award to the wife. The wife, more than 30 days after the entry of the divorce judgment, filed a motion pursuant to Rule 60(a), Ala.R.Civ.P., asking that the final judgment be interpreted so as to give her ownership of the 1977 Chevrolet. The trial court thereafter amended the judgment to award the Chevrolet to the wife. On appeal of that amending order, the Court of Civil Appeals held that the error was correctable either on a motion of a party or on the trial court's own initiative, under Rule 60(a). See also, Antepenko v. Antepenko, 584 So. 2d 836 (Ala.Civ.App.1991) (the trial court did not err in granting a husband's Rule 60(a) motion to amend a divorce judgment to reflect that certain farm equipment was not intended to be covered in a previous order dividing the parties' personal property).
In Continental Oil Co. v. Williams, 370 So. 2d 953 (Ala.1979), this Court held that an action of a trial judge, who stated in an order that he had intended to grant the plaintiff's motion to dismiss its claims, but had not done so through oversight or omission, was within the scope of Rule 60(a). In so holding, this Court stated:
370 So. 2d at 954. (Emphasis added.) See also, Ward v. Ullery, 442 So. 2d 99, 101 (Ala. Civ.App.1983) (a judgment, because of a clerical error, stated that it was against "defendant" and not "defendants"; the trial court properly amended its judgment under Rule 60(a), Ala.R.Civ.P, to specify that the judgment had been entered against both defendants).
In this case, the trial judge stated in his order of June 27, 1995, that he had inadvertently omitted to order the restitution claimed by the insurance carrier, American Bankers Insurance Company. Based upon the above-cited cases interpreting Rule 60(a), Ala.R.Civ.P., we hold that the trial court's error was a clerical error correctable under Rule 29, Ala.R.Crim.P.
In addition, we hold that neither Pickron nor Rule 24.2(b) warrants the Court of Criminal Appeals' conclusion that the trial court lacked jurisdiction to amend the restitution order. Rule 24.2(b) provides that a motion in arrest of judgment must be filed *211 within 30 days after the sentence is pronounced and that the trial court acting on its own motion must meet the 30-day requirement. Rule 24.2(a) provides that the trial court shall arrest judgment "if the charging instrument does not charge an offense, or if the court was without jurisdiction of the offense charged." The trial court's action in this case was not in arrest of judgment; therefore, Rule 24.2(b) does not apply to it. In addition, we note that in Pickron this Court did not address the provision in Temporary Rule 13(b), Ala.R.Crim.P., now Rule 24.2(b), on which the Court of Criminal Appeals had relied in reaching its decision.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, INGRAM, and COOK, JJ., concur. | September 6, 1996 |
674a8e14-50de-4614-bd9b-f37c1abfc678 | Holman v. McMullan Trucking | 684 So. 2d 1309 | 1951255 | Alabama | Alabama Supreme Court | 684 So. 2d 1309 (1996)
Cynthia HOLMAN
v.
McMULLAN TRUCKING.
1951255.
Supreme Court of Alabama.
November 8, 1996.
*1310 Roger L. Lucas and Leigh Ann King of Lucas, Alvis & Wash, P.C., Birmingham, for Appellant.
F. Lane Finch, Jr. of Clark & Scott, P.C., Birmingham, for Appellee.
SHORES, Justice.
Spencer Wayne "Bud" Holman was employed by McMullan Trucking ("McMullan") as a truck driver. In the early morning hours of July 7, 1994, he; his nine-year-old son Spencer Blake Holman ("Blake Holman"); and a family friend, Larry Morrow, were in a truck owned by McMullan when that truck ran off the road near Mount Pleasant, Tennessee. These three were the only occupants; all three were killed in this single-vehicle accident. Cynthia Holman, the mother of Blake Holman and wife of Bud Holman, filed a wrongful death action, based on her son's death, against McMullan, alleging *1311 that her son's death was the result of negligent or wanton operation of the truck owned by McMullan. McMullan filed a motion for summary judgment, which was granted by the trial court. Cynthia Holman appeals from the summary judgment. We affirm.
To support a motion for summary judgment, the movant must make a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56, Ala. R.Civ.P.; Thompson v. Real Estate Financing, Inc., 589 So. 2d 722 (Ala.1991). The burden then shifts to the nonmovant to present substantial evidence creating such an issue of fact or to show that the movant is not entitled to a judgment as a matter of law. Thompson, supra.
The following facts are undisputed: On July 5, 1994, McMullan dispatched Bud Holman to pick up a load in Florence that was to be delivered in Pontiac, Illinois. On this trip, Bud Holman was accompanied by his son Blake and by Morrow. After Bud Holman delivered the load in Illinois, McMullan then dispatched him to his next job in Cullman. It was on the trip to Cullman that the fatal wreck occurred. There were no eyewitnesses, but it appears that at about 3:30 a.m. on July 7, the truck ran off the roadway, hit a guardrail and a telephone pole, struck the Big Bigby Creek Bridge, and overturned into the creek.
There is some debate as to whether Bud Holman or Larry Morrow was driving the truck at the time of the accident. There was evidence that Bud Holman had become ill and that Morrow, who had not been hired by McMullan and who was not qualified to operate such a vehicle, had been driving at a time several hours before the time of the accident. To show that Bud Holman was driving, Cynthia Holman offered the deposition testimony of Wayne Sellers, a state trooper who investigated the accident. Sellers concluded that Bud Holman had been driving, based on Holman's status as an employee of McMullan and based on Sellers's observation of entries in a log book maintained by Bud Holman. While the identity of the driver is uncertain, there, nevertheless, is no issue of material fact that would require submission to a jury. Thus, the summary judgment in favor of McMullan was proper regardless of whether Bud Holman or Morrow was driving at the time of the wreck.
Both sides agree that Alabama choice of law doctrine requires that the substantive rights of an injured party be determined according to the law of the state where the injury occurred. Etheredge v. Genie Industries, Inc., 632 So. 2d 1324 (Ala.1994). The law of the forum, Alabama, governs questions deemed "procedural" in nature. Id. Because the injuries that caused Blake Holman's death occurred in Tennessee, we must apply the law of Tennessee to the substantive issues in this case to determine whether the summary judgment was correct.
In its summary judgment order, the trial court addressed only the issue whether, under Tennessee law, Cynthia Holman's claim was barred if Bud Holman, her husband, was at fault for their son's death. That order stated, in relevant part: "[T]he plaintiff alleges in her complaint that the death of Blake Holman was caused solely by the negligent operation of the truck by his father, Bud Holman. Thus, the percentage of negligence attributable to the father is 100%." We agree with the appellant that this conclusion misstates the specific allegation of the complaint, which claimed that the "driver of the motor vehicle, negligently or wantonly operated the motor vehicle while in the line and scope of his employment [with McMullan]... or with the authorization and ratification of the defendant or its employees, by causing said motor vehicle to leave the roadway." (Emphasis added.) We think this language is broad enough to state a cause of action against McMullan under the doctrine of respondeat superior for the negligence of either Bud Holman (its employee), or Larry Morrow, if McMullan had authorized Morrow to drive its vehicle. The conflicting evidence regarding the identity of the driver was presented to the trial court, and McMullan even argued that the only admissible evidence pointed to the conclusion that Morrow had been driving. Thus, we will consider whether, under Tennessee law, McMullan was entitled *1312 to a judgment if Morrow was at fault for the accident.
Like Alabama law, Tennessee law may render an employer liable for the torts committed by his employees for acts done within the scope of employment, under the doctrine of respondeat superior. Tennessee Farmers Mut. Ins. Co. v. American Mut. Liability Ins. Co., 840 S.W.2d 933 (Tenn.App. 1992); Sain v. ARA Manufacturing Co., 660 S.W.2d 499 (Tenn.App.1983). See also Chamlee v. Johnson-Rast & Hays, 579 So. 2d 580 (Ala.1990). However, the negligence of a driver may be imputed to the owner of the vehicle only upon the finding of a master-servant or joint enterprise relationship. Stephens v. Jones, 710 S.W.2d 38 (Tenn.App. 1984). "In order to hold an employer liable, the plaintiff must prove (1) that the person who caused the injury was an employee, (2) that the employee was on the employer's business, and (3) that the employee was acting within the scope of his employment when the injury occurred." Tennessee Farmers Mut., 840 S.W.2d at 937.
The first element of this analysis, an employee-employer relationship between Morrow and McMullan, is clearly not satisfied in this case. Cynthia Holman concedes that McMullan had never hired Morrow to drive any of its trucks. Indeed, there is no evidence to suggest any joint enterprise or even to suggest that before the accident McMullen had knowledge that Morrow might be operating one of its vehicles. The plaintiff, however, argues that McMullan nonetheless could be held liable under the doctrine of respondeat superior because Bud Holman, who was McMullan's servant, had at least implicitly authorized Morrow to drive. We disagree.
It is clear that even if Bud Holman had given Morrow his permission to operate the vehicle, Holman's assent would not have been effective to create liability upon the part of McMullan for the actions of Morrow.
Potter v. Golden Rule Grocery Co., 169 Tenn. 240, 84 S.W.2d 364, 365-66 (1935) (citation omitted). Cynthia Holman offered no evidence to suggest that McMullan had authorized Bud Holman or any of its other employees to delegate driving responsibilities to third persons under any circumstances, nor did she offer evidence that McMullan later ratified any decision by Bud Holman to allow Morrow to drive. In fact, any such appointment was shown to be expressly against company policy. If Morrow was operating the truck at the time of the accident, he would have been doing so without McMullan's authorization, and McMullan could not be liable under the doctrine of respondeat superior. Thus, McMullan's summary judgment was proper if Larry Morrow had negligently caused the death of Blake Holman.
We now consider the question whether the summary judgment would be proper if Bud Holman's negligent operation of the truck caused the death of Blake Holman. Under Tennessee law, "if an injured person is barred by law from suing the servant he is likewise barred from maintaining a suit against the master when liability is predicated solely on the doctrine of respondeat superior." Stewart v. Craig, 208 Tenn. 212, 217, 344 S.W.2d 761, 763 (1961). Cynthia Holman alleged that McMullan is liable only vicariously for the tort of the driver, not for any direct negligence. Therefore, if the injured party, Blake Holman, because of whose death this action was brought, would have been barred from suing the servant, Bud Holman, then his mother likewise would be barred from maintaining a wrongful death action against McMullan.
As under the common law of Alabama, wrongful death actions did not exist under the common law of Tennessee. Any cause of action an injured person had was abated by his death. Busby v. Massey, 686 S.W.2d 60 (Tenn.1984); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 *1313 (Tenn.App.1990). See also Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988); Breed v. Atlanta, B. & C.R.R., 241 Ala. 640, 4 So. 2d 315 (1941). However, Tennessee has enacted a survival statute that preserves the decedent's right of action and provides for the procedure for distribution of the proceeds of any recovery. Memphis Street Ry. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444 (1958); Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755 (1963). The statute provides in pertinent part:
Tenn.Code Ann. § 20-5-106(a).
Cynthia Holman is the parent and sole beneficiary of Blake Holman's right of action under the Tennessee survival statute. She brought this action alleging that Blake Holman's death was caused by negligence or wantonness on the part of the driver of McMullan's vehicle. If Morrow was the driver, then McMullan cannot be held liable under the doctrine of respondeat superior. On the other hand, if Bud Holman was driving at the time of the accident, then Cynthia Holman is necessarily alleging that negligent or wanton conduct on the part of her husband Blake Holman's fatherwas the sole cause of Blake Holman's death.
It has long been the law in Tennessee that a recovery for wrongful death will not be allowed when the negligence of the sole beneficiary of any wrongful death recovery proximately contributed to the death for which recovery is sought. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694 (1949); Smith v. Henson, 214 Tenn. 541, 381 S.W.2d 892 (1964). Tennessee law is equally clear that the negligence of a mother or father resulting in the wrongful death of a minor child is imputed to the other parent so as to preclude recovery by or for the benefit of either parent. Nichols, supra; Shelton v. Williams, 204 Tenn. 417, 321 S.W.2d 807 (1959); Hawthorne v. Lankes, 58 Tenn.App. 397, 430 S.W.2d 803 (1968); Pickens v. Southern Ry.,, 177 F. Supp. 553 (E.D.Tenn.1959); Keener v. Morgan, 647 F.2d 691 (6th Cir.1981). Thus, Tennessee law would impute the negligence of Bud Holman to Cynthia Holman, Blake Holman's mother. Because, by operation of law, she would be considered to have proximately caused the death of Blake Holman, she could not recover.
Cynthia Holman contends that her claim was not barred, because, she argues, the Tennessee rule that imputes the negligence of one parent to the other so as to bar the other's recovery for the wrongful death of the child is no longer valid because Tennessee has now adopted a comparative fault analysis for determining tort liability. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court of Tennessee replaced the common law defense of contributory negligence with a modified system of comparative fault. Under McIntyre, a plaintiff may recover so long as his negligence is not greater than that of the defendant, although the plaintiff's damages are reduced in proportion to the percentage of the total negligence attributable to the plaintiff. Id. at 57. In order to determine the effect of Tennessee's adoption of the comparative negligence doctrine upon this case, we once again must look to the law of Tennessee.
Since embracing a comparative fault approach, the courts of Tennessee have not specifically considered the doctrine of imputed spousal negligence barring recovery for the wrongful death of a minor child. However, they have held that the doctrine of imputed negligence, founded upon public policy considerations somewhat similar to those in the present case, remains completely intact. In Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996), the Supreme Court of Tennessee held that the negligent operation of a motor vehicle by a family member could still be imputed to the head of the household under the "family *1314 purpose" doctrine. The defendant in that case had argued that because the comparative fault system was incompatible with the concept of joint and several liability among tortfeasors, Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn.1994), imputed negligence under the family purpose doctrine was a variant of joint liability and thus was no longer viable. The court disagreed, noting that under the doctrine liability was vicarious, not joint and several, and noting that the doctrine was based upon justifications of public policy, such as a presumption of parental control over children and the principle that the head of a household should bear responsibility because it is he who allows family members to operate the family automobile. Camper, 915 S.W.2d at 447. It reasoned that the doctrine of imputed negligence under the family purpose doctrine was still completely valid because the underlying public policy presumptions were unaffected by the shift to comparative negligence. Id.
For similar reasons, Tennessee's comparative fault principles are in no way contradictory to that State's doctrine of imputed negligence of a parent that prevents recovery in an action for the wrongful death of the child. The underlying principle in the Nichols line of cases is that the sole beneficiary in a wrongful death action should not profit by his own negligence, Rogers, supra, 807 S.W.2d 242, 246, citing Bamberger v. Citizens' Street Ry., 95 Tenn. 18, 31 S.W. 163 (1895), Smith v. Henson, supra; and the justification for imputing the negligence of one spouse to the other so as to prevent either from recovering has been stated as follows: "[W]hile the family relation exists, each parent impliedly authorizes the other to act for him or her in the common care and control of their children, so that each becomes responsible for the acts of the other in that respect." Nichols, 216 S.W.2d at 697 (citation omitted). These principles upon which the rules of law in question rest remain unaltered by Tennessee's adoption of the doctrine of comparative fault. In McIntyre, the Tennessee Supreme Court acknowledged that it was merely "shifting the arbitrary contributory negligence bar to a new ground." 833 S.W.2d at 57, citing Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975). Therefore, we conclude that under Tennessee law the doctrine of comparative negligence is to be integrated with these principles, and that its integration with them merely modifies the ability of a negligent beneficiary to recover for the wrongful death of his decedent.
As this Court reads McIntyre, under Tennessee's comparative negligence analysis the fault of the beneficiary who brings a derivative action based on the death of the deceased child would either reduce or bar recovery on the wrongful death claim. See also Tuggle v. Allright Parking Systems, Inc., 922 S.W.2d 105 (Tenn.1996) (the fault of a physically injured spouse either reduces or bars recovery on the other spouse's derivative loss-of-consortium claim). This would merely allow a negligent beneficiary to recover for her decedent's wrongful death if the beneficiary's own negligence was not greater than that of the defendant, with the total damages reduced by the percentage of the beneficiary's negligence. However, while the comparative negligence bar may be less severe than that imposed by the contributory negligence defense, it affords Cynthia Holman no relief in this case. She alleged that the sole cause of the accident was negligent or wanton operation of the truck; therefore, the driver is the only alleged tortfeasor and that person necessarily would be 100% at fault. As noted above, we assume here that Bud Holman was driving at the time of the accident, so this share is ascribed to him and imputed to Cynthia Holman under Tennessee law. Because she, as the beneficiary, is considered to be 100% at fault, her claim is barred under McIntyre.
The trial court also held that Cynthia Holman was barred from suing Bud Holman, and McMullan under the doctrine of respondeat superior, on the basis that Tennessee's parental immunity doctrine prevents a minor child from maintaining a negligence action seeking damages against his parent. However, because we have already concluded that Cynthia Holman's claim is barred under the doctrine of imputed negligence, we need not consider that holding.
*1315 In conclusion, we hold that the trial court properly entered the summary judgment for McMullan. While there is conflicting evidence regarding who was driving at the time of the accident, there was no jury question on that issue because McMullan was entitled to a judgment as a matter of law regardless of which person was driving. Morrow was not an employee of McMullen and his operation of the vehicle was not authorized or ratified by McMullan. If Bud Holman was driving, then it was solely his negligence that caused the accident, and under Tennessee law his negligence would bar Cynthia Holman's wrongful death claim.
AFFIRMED.
HOOPER, C.J., and MADDOX, KENNEDY, and COOK, JJ., concur. | November 8, 1996 |
17ec6774-c791-4a3a-82e0-f2a7211f6e12 | George v. State | 717 So. 2d 844 | 1951306 | Alabama | Alabama Supreme Court | 717 So. 2d 844 (1996)
Ex parte State of Alabama.
(In re Larry Donald GEORGE
v.
STATE of Alabama).
1951306.
Supreme Court of Alabama.
October 25, 1996.
Rehearing Denied December 6, 1996.
*845 Jeff Sessions and Bill Pryor, attys. gen., and Beth Jackson Hughes, asst. atty. gen., for petitioner.
Steven D. Giddens, Talladega; and Jeb Fannin, Talladega, for respondent.
HOUSTON, Justice.
Larry Donald George was convicted of two counts of capital murder and one count of attempted murder.[1] The jury recommended a sentence of death on the capital murder conviction, by a vote of 10 to 2, and life imprisonment on the attempted murder conviction. After weighing the only aggravating circumstance it found to exist (that the murder was committed during a burglary, Ala. Code 1975, § 13A-5-49(4)) and the only mitigating circumstance it found to exist (that George had no significant history of past criminal activity, § 13A-5-51), the trial court sentenced George to death on the capital murder charge and to life imprisonment on the attempted murder charge. The Court of Criminal Appeals affirmed George's capital murder conviction, but granted him a new sentencing hearing before a newly empaneled jury, because, it held, the evidence presented by the State during the penalty phase presented a nonstatutory aggravating circumstance that may have prejudiced the jury against George and justified a sentence of death by electrocution. The Court of Criminal Appeals wrote in its opinion:
George v. State, 717 So. 2d 827, 841-42 (Ala. Crim.App.1996).
Judge Cobb, joined by Judge Long, dissented from that part of the opinion remanding the case for a new sentencing hearing. She wrote:
"Section 13A-5-45(d), Ala.Code 1975, states:
717 So. 2d at 843-44. The State petitioned for certiorari review, which we granted.
The State maintains that the evidence it offered at the penalty phase was not offered for the sole purpose of proving nonstatutory aggravation, as the Court of Criminal Appeals held in the majority opinion. Rather, the State says, it was offered to rebut the evidence George had offered in mitigation evidence intended to indicate that he was mentally unstable when he committed the capital offenses for which he was convicted; the State says its evidence was offered to establish that George was not mentally unstable, but rather that he was, in fact, extremely clever and calculating, enough so that he had been able to elude law enforcement authorities for six years. According to the State, it argued only one aggravating circumstance in its closing argument at the penalty phase (that the murders were committed during a burglary), and the trial court instructed the jury as follows regarding that one aggravating circumstance: "You may not consider any aggravating circumstance other than the aggravating circumstance of which I have instructed you...." Therefore, says the State, the jury and the trial court clearly understood that the evidence the State presented at the penalty phase was offered to rebut Dr. Ronan's testimony as to mental instability, not to prove a nonstatutory aggravating circumstance.
George maintains that the State's only evidence offered during the penalty phase pertained to the details surrounding his flight and his subsequent apprehension, which, he says, were not relevant to the one aggravating circumstance that the State alleged.
At the penalty phase of the trial, George called as witnesses two of his sisters and Dr. Ronan, the psychologist. George's sisters were called to testify first. They testified that George had had a relatively normal life (e.g., that he was a friendly person; that he did not get into trouble when he was growing up; that he had been a good student; and that he had graduated from high school) and they asked the jury to spare George's life and to sentence him to life imprisonment without the possibility of parole. When the sisters finished testifying, George told the trial court that his final witness, Dr. Ronan, had not arrived and would not arrive for several hours. Because Dr. Ronan was at that moment unavailable, the State requested to be allowed to proceed with its case and present its witnesses to rebut the psychological mitigation evidence to be elicited from Dr. Ronan. George did not object to the State's request to proceed and, therefore, the trial court allowed the State to present its rebuttal evidence out of turn. The State presented testimony from one investigator and two police officers about what George did after he had committed the capital offense (specifically, how he lived during the time he was trying to elude the police) and videotapes portraying the campsite where George surrendered.
Dr. Ronan's testimony was introduced to prove the mitigating circumstance that "the capital offense was committed while [George] was under the influence of extreme mental or emotional disturbance." Ala.Code 1975, § 13A-5-51(2). She testified that George was emotionally unstable, although not in the sense of having a major psychiatric illness. She further testified that George suffered from a mixed personality disorder that had dependent, avoidant, passive-aggressive, paranoid, and, perhaps, schizotypal features; that when she saw him he was suffering from an adjustment disorder with depression; and that, in her opinion, in times of extreme emotional distress George would lapse into more disorganized thoughts. According to Dr. Ronan, on those occasions George's "logic may not be what it normally is" and "[h]e may even have some perceptual aberrations like thinking that maybe there are voices or things like that."
To rebut that evidence, the State offered testimony about George's behavior after he committed the capital offenses for which he *848 was convicted testimony about locating and arresting George in Delaware and about his living conditions at the time he was captured. It introduced that evidence to rebut the evidence George offered in mitigation that he was mentally unstable when he committed the capital offenses and to take away from the horror of the crimes; it offered that evidence to establish George's consciousness of guilt that he was aware of what he had done and his attempts to avoid detection. In its closing argument, while asserting that the aggravating circumstance outweighed the mitigating circumstance, the State stated:
In McWilliams v. State, 640 So. 2d 982, 991 (Ala.Cr.App.1991), aff'd in part and remanded, 640 So. 2d 1015 (Ala.1993), the Court of Criminal Appeals recognized that when a defendant presents evidence placing his mental status at issue, as George did in this case, the State can properly rebut that evidence that after a defendant presents mitigating evidence, the burden shifts to the State to disprove the existence of the mitigating factor by a preponderance of the evidence. See Dill v. State, 600 So. 2d 343, 362 (Ala.Crim. App.1991), aff'd, 600 So. 2d 372, cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993), in which the Court of Criminal Appeals held: "In fact, the State ... has a greater burden in disproving the existence of mitigating circumstances than the defendant has in introducing [evidence of] mitigating circumstances." See, also, Ala.Code 1975, § 13A-5-45(g), which provides as follows:
From a thorough review of the record, we think it clear that the evidence the State presented at the penalty phase of the trial pertaining to where and how George was living when he was captured and returned to Alabama was offered to rebut the evidence of mental instability that he had offered in mitigation of the capital offenses for which he was convicted. This evidence was probative and relevant to the sentencing and, as Judge Cobb said in dissent, it was "offered to show that [George] was not emotionally disturbed to any appreciable degree" and "to show that, in fact, [George] was extremely clever and calculating about ensuring his safety and seclusion." 717 So. 2d at 844. Although the trial court did not find emotional instability to be a mitigating circumstance, had the State not offered, or not been allowed to introduce, evidence of emotional stability to rebut the evidence George had presented to show emotional instability, the trial court might have found otherwise. The trial court properly admitted that evidence.
We reverse the Court of Criminal Appeals' judgment remanding the case for a new penalty phase hearing and remand the case to that court with instructions to reinstate the sentence of death.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
[1] After evading the police for six years, George was apprehended in Delaware as the result of an episode of the television show America's Most Wanted, on which an account of this case was featured. Thereafter, he was convicted of two counts of murder made capital because two people were killed as the result of one course of conduct, Ala.Code 1975, § 13A-5-40(a)(10), and because the murders were committed during the course of a burglary, Ala.Code 1975, § 13A-5-40(a)(4). | October 25, 1996 |
62afae5c-45fe-46e5-a06c-72261bf57276 | Mingledorff v. VAUGHAN REGIONAL MEDICAL | 682 So. 2d 415 | 1950418 | Alabama | Alabama Supreme Court | 682 So. 2d 415 (1996)
George MINGLEDORFF, in his official capacity as Commissioner of Revenue, et al.
v.
VAUGHAN REGIONAL MEDICAL CENTER, INC., and Baptist Medical Center.
1950418.
Supreme Court of Alabama.
September 6, 1996.
Gwendolyn B. Garner, Asst. Counsel, Department of Revenue, and Asst. Atty. Gen., for Commissioner and Dale Curry and Tammy Jones King.
J. Fairley McDonald III of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Vaughan Regional Medical Center.
J. Hobson Presley, Jr., Tony G. Miller and Thomas H. Brinkley of Maynard, Cooper & Gale, P.C., Birmingham, for Baptist Medical Center.
Sydney Lavender and William D. Jones III of Johnston, Barton, Proctor & Powell, Birmingham, for amicus curiae Alabama Hospital Association.
*416 Edwin E. Humphreys, Birmingham, for amicus curiae Baptist Health System, Inc.
HOUSTON, Justice.
Is the use of property owned by a nonprofit corporation organized under the laws of Alabama and operated and used by that nonprofit corporation exclusively as a hospital a use that is "exclusively" or "purely" charitable, so as to qualify for an exemption from the payment of ad valorem taxes under Amendment 373(k) of the Constitution of Alabama of 1901 and Ala.Code 1975, § 40-9-1(1)? We hold that it is; therefore, we affirm the judgment of the trial court.
Amendment 373(k) provides in pertinent part that "property devoted exclusively to... charitable purposes" is exempt from ad valorem taxation. Section 40-9-1(1) states in pertinent part that "all property, real and personal, used exclusively for ... purposes purely charitable" is exempt from ad valorem taxation. Vaughan Regional Medical Center, Inc. ("Vaughan"), and Baptist Medical Center ("Baptist") are nonprofit corporations organized and existing under the laws of Alabama and they are qualified as "charitable organization[s]" under the Internal Revenue Code ("I.R.C."), 26 U.S.C. § 501(c)(3). They are, therefore, exempt from liability for federal income taxes, as well as for liability for state income taxes. See Ala.Code 1975, § 40-18-32(a)(11). Vaughan is located in Selma; Baptist is located in Montgomery. After many years of interpreting the state constitutional and statutory exemptions as applying to Vaughan and to Baptist, the taxing authorities in the City of Selma and in Dallas and Montgomery Counties, relying on a change in position by the Alabama Department of Revenue, assessed Vaughan and Baptist for ad valorem taxes. Vaughan filed this action in the Montgomery Circuit Court against Hollis Curry, Selma's tax collector; Dale R. Curry, the tax assessor for Dallas County; Tammy Jones King, the tax collector for Dallas County; and George Mingledorff, the Alabama commissioner of revenue, seeking declaratory and injunctive relief. Baptist was allowed to intervene, naming as defendants Sarah Norred, the tax assessor for Montgomery County; and Marvin Driver, the tax collector of Montgomery County. There is no challenge to the parties plaintiff or parties defendant. The defendants moved to dismiss, arguing that Vaughan and Baptist had failed to exhaust their administrative remedies and, therefore, that the trial court lacked subject matter jurisdiction. After a hearing on the motion and the merits, the trial court denied the motion to dismiss and held that nonprofit charitable hospitals exempt from income taxation under I.R.C. § 501(c)(3) were exempt from ad valorem taxation in Alabama. The trial court ruled that Vaughan and Baptist were entitled to a complete exemption from the payment of ad valorem taxes on their real and personal property used for the corporate purpose of operating their hospital facilities, and it enjoined the defendants from assessing any ad valorem taxes on any of the property owned by Vaughan and Baptist that was at issue in the case before the court. The defendants appealed.
Initially, we note that Vaughan and Baptist challenged the tax assessments against them on the ground that they were void and illegal. Questions of law and of statutory and constitutional construction preponderate over questions of fact in this case; therefore, Vaughan was not required to exhaust administrative remedies before filing this action, and Baptist was not required to exhaust administrative remedies before intervening. See Eagerton v. Williams, 433 So. 2d 436, 449 (Ala.1983); Graves v. McDonough, 264 Ala. 407, 88 So. 2d 371 (1956). The trial court had subject matter jurisdiction.
The dispositive issue is whether the property sought to be taxed, which is being used exclusively as a hospital, is being used exclusively in charitable pursuits. If it is, then there is no question that Vaughan and Baptist are exempt from ad valorem taxation under the clear wording of Amendment 373(k) and § 40-9-1(1).
It is not disputed that Vaughan (and its predecessor corporations) and Baptist were created for charitable purposesto do all things necessary to operate hospital facilities for the care of all persons within the territories served by the facilities and to furnish healthcare services to persons otherwise unable *417 to pay. Vaughan's articles of incorporation state in pertinent part as follows:
"The purpose of the Corporation shall be:
Baptist is sponsored by the Montgomery Baptist Association, an association of 54 Baptist churches located in Montgomery, Elmore, and Lowndes Counties. Its certificate of incorporation in pertinent part provides:
According to the incorporating documents of both Vaughan and Baptist, neither institution pays any of its net earnings to its directors, officers, or other private individuals and, upon dissolution, corporate assets, after discharge of liabilities, are to be transferred to other charitable organizations.
Relying on Most Worshipful Grand Lodge of Free & Accepted Masons of Alabama v. Norred, 603 So. 2d 996 (Ala.1992), and Gay v. State, 228 Ala. 253, 153 So. 767 (1934), the defendants contend that not all of the property used by Vaughan and Baptist in the operation of their hospital facilities is devoted exclusively to a charitable purpose. Specifically, they point out that Baptist operates a parking deck, a cafeteria, and a gift shop, all of which generate income, and that both Vaughan and Baptist charge fees to, and receive payment from, the majority of their patients, either directly from the patients themselves or indirectly through private health insurers or government programs such as Medicare and Medicaid. Notwithstanding the nonprofit status of Vaughan and Baptist, generating income in this manner, according to the defendants, cannot be reconciled with Vaughan and Baptist's stated charitable purposes. Stated differently, the defendants' position is basically that Vaughan and Baptist do not qualify for the total tax exemptions set out in Amendment 373(k) and § 40-9-1(1) because they raise income to support their facilities by charging their patients who are financially able to pay. The defendants argue, instead, that Vaughan and Baptist may seek to qualify for a partial tax exemption under § 40-9-1(2), which provides:
This provision, according to the defendants, applies specifically to all hospitals, profit or nonprofit, that generate income from their facilities through the operation of such things as gift shops, cafeterias, etc., or that charge the majority of their patients for services rendered. After examining the record and considering the briefs, as well as certain revenue rulings from the Internal Revenue Service ("I.R.S.") and decisions from other jurisdictions, we must disagree.
In order to qualify for the total ad valorem tax exemption provided by Amendment 373(k) and § 40-9-1(1), Vaughan and Baptist must use their property exclusively for charitable purposes or, as this Court stated in Norred, supra, at 1000, they must use it "solely, only, or wholly for a ... charitable purpose." In Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 466, 34 So. 2d 835, 841 (1948), this Court, quoting Johnson v. Holifield, 79 Ala. 423, 425 (1885), discussed the nature of a "charity":
This definition is consistent with the definition of "charity" set out in Black's Law Dictionary (6th ed.1990):
As noted earlier, the incorporating documents of both Vaughan and Baptist clearly charted a charitable course for these nonprofit institutions. The net earnings of Vaughan and Baptist do not inure to the benefit of any director, officer, or private individual, and the assets of both institutions are earmarked for charitable use upon their dissolution. Both Vaughan and Baptist have an "open door" policy in that they do not turn away patients who are unable to pay for medical services. The record indicates that the income generated by Vaughan and Baptist, including the income generated by those patients able to pay, serves to offset the expense of running the facilities and caring for indigent patients.
It is significant, we think, that both Vaughan and Baptist have satisfied the I.R.S. that their charitable status entitles them to be exempt from federal income taxation. I.R.C. § 501(c)(3) states in pertinent part *419 that the income tax exemption is available to "[c]orporations ... organized and operated exclusively for ... charitable ... purposes." The I.R.S. has interpreted § 501(c)(3), insofar as it applies to hospitals. Revenue Ruling 56-185 states in pertinent part:
Later, in Revenue Ruling 69-545, the I.R.S. addressed the § 501(c)(3) income tax exemption in the context of two specific examples of nonprofit hospital corporations. In one of the examples, the institution was a community hospital and operated a full-time emergency room having an "open door" policy for emergency treatment, but which otherwise ordinarily limited admissions to those who could pay the cost of their hospitalization, either themselves or through private health insurance or with the assistance of public *420 programs such as Medicare or Medicaid. The I.R.S. noted:
In Revenue Ruling 83-157, the I.R.S. indicated that a hospital of the kind addressed in *421 Revenue Ruling 69-545 would be entitled to the income tax exemption under § 501(c)(3) even if it did not offer emergency room services because of a determination by state regulatory authorities that such a service was unnecessary:
Based on the evidence before us, we think it clear that Vaughan and Baptist have satisfied the I.R.S.'s requirement that their property be used exclusively for a charitable purpose. Contrary to the defendants' urgings, we can discern no logical basis for imposing a more stringent requirement on nonprofit hospitals seeking the ad valorem tax exemption under Amendment 373(k) and § 40-9-1(1). In fact, the I.R.S.'s position concerning the primary issue in this casewhether the receipt of payment from those able to pay defeats a hospital's charitable purposeis consistent with the position this Court has taken in the past. See, e.g., Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938), wherein this Court, addressing a question of governmental immunity, noted:
236 Ala. at 691, 185 So. at 178. See, also, Clark v. Mobile County Hospital Board, 275 Ala. 26, 151 So. 2d 750 (1963). In accord, see Sebastian County Equalization Board v. Western Arkansas Counseling & Guidance Center, Inc., 296 Ark. 207, 752 S.W.2d 755 (1988); Richards v. Iowa Department of Revenue, 414 N.W.2d 344 (Iowa 1987); Bethesda Foundation v. Board of Review of Madison County, 453 N.W.2d 224 (Iowa App. 1990); Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290 (Mo.1967); Jackson County v. State Tax Commission, 521 S.W.2d 378 (Mo.1975); Callaway Community Hospital Association v. Craighead, 759 S.W.2d 253 (Mo.App.1988); Medical Center Hospital of Vermont, Inc. v. City of Burlington, 152 Vt. 611, 566 A.2d 1352 (1989); Evangelical Lutheran Good Samaritan Society v. Gage County, 181 Neb. 831, 151 N.W.2d 446 (1967); Harvard Community Health Plan, Inc. v. Board of Assessors of Cambridge, 384 Mass. 536, 427 N.E.2d 1159 (1981); Downtown Hospital Association v. Tennessee State Board of Equalization, 760 S.W.2d 954 (Tenn.App.1988). All of these cases suggest a trend toward defining a "charity" broadly, in terms of an act of kindness or benevolence, not narrowly in terms of the specific revenue-producing methods used by the organization. This trend is noted in 71 Am.Jur.2d State and Local Taxation, § 373 (1972):
See, also, 15 Am.Jur.2d Charities, § 183 (1976), wherein it is stated:
Concerning the defendants' reliance on Gay v. State, supra, and their contention that Vaughan and Baptist could qualify only for the partial tax exemption set out in § 40-9-1(2), we agree with Vaughan and Baptist that § 40-9-1(2) is applicable to for-profit hospitals, a portion of whose property is used for charitable purposes. However, hospitals such as Vaughan and Baptist, whose overall objective is to provide health services to the public at large, with no reservation as to those who cannot afford to pay and with no eye toward the attainment of profit or private advantage, qualify for the general ad valorem tax exemptions contained in Amendment 373(k) and § 40-9-1(1). In Gay v. State, this Court was called on to construe Art. IV, § 91, of the Alabama Constitution, a tax exemption provision similar to the one set out in Amendment 373(k) and subdivision (1) of § 3022 of the 1923 Code (predecessor to § 40-9-1(1)). Section 91 provides an ad valorem tax exemption for property used "for purposes purely charitable." For all that appears from the opinion, the hospital in Gay v. State was a privately owned, for-profit institution, the majority of whose patients were able to, and actually did, pay for the hospital's medical services. However, the hospital claimed that it qualified for the § 91 and § 3022 exemptions because it had provided services to a number of patients who, although billed for those services, could not pay. The question of the exemption was submitted to a jury, which found against the hospital as to two of the five years in which tax assessments were made. In an attempt to ascertain the meaning of the words "purely charitable," as used in § 91 and § 3022, this Court stated:
228 Ala. at 256, 153 So. at 770. After examining Gay v. State, we conclude that the result reached in that case was the correct one, for the undisputed evidence clearly showed that the privately owned, for-profit hospital involved in that case was not engaged in a "purely charitable" pursuit. However, we fail to see why a jury was required to determine whether the hospital was a "purely charitable" institution. Given the undisputed evidence that the hospital was not a "purely charitable" institution, whether the hospital qualified for the exemption under § 91 and § 3022 was a legal issue that should have been decided by the court. In any event, we are not persuaded that Gay v. State correctly states Alabama law on the question whether a nonprofit hospital's receipt of payment from patients financially able to pay defeats the charitable purpose for which that hospital was organized. Therefore, to the extent that it is inconsistent with this opinion, Gay v. State is overruled.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur. | September 6, 1996 |
b5cb068d-9c31-4680-9027-d9998544da90 | CA v. Wal-Mart, Inc. | 683 So. 2d 413 | 1950465 | Alabama | Alabama Supreme Court | 683 So. 2d 413 (1996)
C.A.
v.
WAL-MART, INC.
1950465.
Supreme Court of Alabama.
October 18, 1996.
Garve Ivey, Jr., of King, Ivey & Junkin, Jasper, for Appellant.
Dorothy A. Powell and Marda W. Sydnor of Parsons, Lee & Juliano, P.C., Birmingham, for Appellee.
PER CURIAM.
C.A. brought an action against Wal-Mart, Inc., for damages based on her abduction from a Wal-Mart store's parking lot and her subsequent rape; the abduction and rape were perpetrated by a party not connected with Wal-Mart. The circuit court entered a summary judgment for Wal-Mart.
This case falls within the established rule that a premises owner is generally not liable for the criminal act of a third party. Before the criminal acts against C.A., the police had received reports of the following incidents occurring on or near the Wal-Mart premises: 13 thefts of unattended purses and wallets; 7 thefts of property from inside unattended automobiles; 6 thefts of automobiles; 7 incidents of harassment; 2 occurrences of reckless endangerment; 1 assault involving family members; 1 theft of property inside the store; 1 incident of scratched paint on an automobile; and 1 case of public lewdness. This evidence does not present a fact question under the standard applicable to cases seeking to impose liability for the criminal act of a third party. Saccuzzo v. Krystal Co., 646 So. 2d 595 (Ala.1994); Habich v. Crown Central Petroleum Corp., 642 So. 2d 699 (Ala.1994); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala.1986); Law v. Omelette Shop, Inc., 481 So. 2d 370 (Ala.1985); Ortell v. Spencer Companies, Inc., 477 So. 2d 299, 299 (Ala.1985). Cf. Young v. Huntsville Hospital, 595 So. 2d 1386 (Ala.1992), and Nail v. Jefferson County Truck Growers Ass'n, 542 So. 2d 1208 (Ala. 1988).
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, and COOK, JJ., concur.
KENNEDY and BUTTS, JJ., dissent.
KENNEDY, Justice (dissenting).
I respectfully dissent.
C.A., a pregnant employee of the Jasper, Alabama, Wal-Mart "Super Center" store, was abducted by an armed assailant one evening as she left work, and was then raped and robbed.[1] This represented the 22d criminal incident involving the Super Center parking lot in the approximately 9 months the store had been open for business. The robbery was the 28th theft crime involving the Super Center premises in that same period.
*414 Indeed, Wal-Mart, recognizing the potential for criminal activity on its Super Center premises, had hired armed security persons and had positioned them at the front of the store during the evening hours. In this regard, the manager of the store testified as follows in a deposition:
C.R. 672.
The security persons hired by Wal-Mart, off-duty sheriff's deputies and police officers, were not available to work every evening. No security person was present on the evening C.A. was abducted.
C.A. sued Wal-Mart, alleging that it had "negligently and/or wantonly and/or recklessly allowed a defect or danger to exist in the ... parking lot," because of inadequate parking lot lighting and a failure to provide parking lot security on the evening of her abduction. Wal-Mart moved for a summary judgment on the basis that the criminal incident was not foreseeable, and, therefore, that it had no duty to protect C.A. against that attack. The trial court granted that motion. The majority of this Court today affirms Wal-Mart's summary judgment. In my view, however, the judgment was clearly improper, because the evidence in this case creates a jury question on the matter of foreseeability.
A duty to protect another from the criminal acts of third parties can arise from the existence of a special relationship or from special circumstances. Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.1986). "Special circumstances" exist where the probability of a criminal incident is foreseeablewhere the defendant "[knows] or ha[s] reason to know of a probability of conduct by third persons that would endanger the plaintiff." Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala.1994), quoting, Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208, 1211 (Ala.1988).
Frequently, in considering this foreseeability question, this Court has looked to the number of previous crimes on the defendant's premises that were in the nature of the crime in issue. See, e.g., Childers v. Winn-Dixie Stores, Inc., 514 So. 2d 879 (Ala. 1987). This is a meaningful inquiry, and, indeed, here, there was a history of theft crimes preceding the robbery in issue. In any event, however, and in particular as to the abduction and rape, we must be cautious not to lose sight of the fact that the ultimate question remains one of foreseeability.
It is true, as Wal-Mart points out, that there had been no previous incident specifically involving an abduction and rape, but, certainly, any reasonable person would nonetheless foresee the very real threat that crimes of this nature would occur at the Super Center parking lot. Perhaps most obvious is the long list of criminal incidents that had occurred consistently at the Super Center, and specifically in the parking lot, during the evening hours, in only nine months' time. In this regard, I refer to the 21 previous criminal incidents in the parking lot, but I note that Wal-Mart concedes that a total of 39 criminal incidents had occurred at the Super Center in the short time it had been open before the attack on C.A. It does not dispute that of these 39 incidents 30 involved felony offenses, and, like the incident here, over half of these 39 occurred in the evening hours. However, perhaps most compelling is the avowed recognition by Wal-Mart that it should (and did) hire armed guards "as a deterrent" and so that "people," including "employees," would "believe that the store was safe."[2]
*415 Applying the rule of law and affording, thereunder, protection from those who would victimize, must be the business of this Court, and that should be the business of anyone who, with the assurances of safety, would persuade another to come onto their premises. Certainly, the Court should not validate the actions of an entity that strives to offer its implicit promise of safety, but which, despite considerable evidence that it must take additional action if it is to live up to that promise, proclaims that it has absolutely no duty to offer aid that might prevent another from being brutalized.
BUTTS, J., concurs.
[1] The assailant is presently imprisoned for these crimes.
[2] No business should be penalized because it, quite commendably, has simply taken security measures. Therefore, it bears emphasis here that Wal-Mart did not simply hire a security guard with the hope of preventing criminal activity, but intended that patrons and employees should see its hiring security persons as protecting them. | October 18, 1996 |
18d15c6b-8a02-4739-803e-b7b2893ab9a4 | Ex Parte State Ex Rel. State of Ohio | 718 So. 2d 665 | 1951024 | Alabama | Alabama Supreme Court | 718 So. 2d 665 (1996)
Ex parte STATE of Alabama ex rel. STATE OF OHIO and P.C.
(In re STATE of Alabama ex rel. STATE OF OHIO and P.C. v. E.B.M.).
1951024.
Supreme Court of Alabama.
September 6, 1996.
William Prendergast and Mary E. Pons, asst. attys. gen., Department of Human Resources, for petitioner.
Randy Winborn of Yates, Mitchell, Bernauer, Winborn & Morton, Florence, for respondent.
HOUSTON, Justice.
The State of Alabama, on behalf of the State of Ohio and P.C., petitioned the juvenile division of the Lauderdale County Circuit Court under the Uniform Reciprocal Enforcement of Support Act ("URESA"), Ala. Code 1975, § 30-4-80 et seq., seeking to establish the paternity of P.C.'s two minor children and to enforce the payment of child support.[1] The alleged father, E.B.M., denied paternity, arguing that the presumption of paternity that attached to G.C., P.C.'s deceased husband, could not be rebutted. (The minor children were born during the marriage of G.C. and P.C.) The case was submitted to the trial court on briefs and on evidence, including blood tests requested by the alleged father that indicated a 99.97% probability that he was the biological father of the minor children. No hearing was held. The trial court, without elaboration, found for the alleged father. The Court of Civil Appeals affirmed, without addressing the merits of the trial court's finding of paternity. Rather, the Court of Civil Appeals, in a 4-1 opinion, held that pursuant to Ex parte State of California, 669 So. 2d 884 (Ala.1995), the trial court had no jurisdiction to determine paternity within the confines of a URESA action and that the trial court's judgment for E.B.M., the alleged father, was due to be affirmed on that ground:
State ex rel. State of Ohio v. E.B.M., 718 So. 2d 664 (Ala.Civ.App.1996). (Citations omitted.)
*666 According to the dissent, authored by Judge Crawley, this Court's pronouncement in Ex parte State of California made it clear that an individual seeking to establish paternity must do so in an action under the Alabama Uniform Parentage Act ("UPA"), not under URESA. Although the dissent agreed with the majority's conclusion that, pursuant to Ex parte State of California, the trial court lacked jurisdiction to determine paternity in a URESA action, it would have set aside the judgment as void and dismissed the appeal, because, it said, if the trial court lacked the jurisdiction to determine paternity, its decision could not have been deemed correct and the judgment should have been set aside and the appeal dismissed. The dissent also expressed concern over the res judicata effect of the affirmancethat because the trial court determined that the alleged father was not the biological father of the minor children, the majority's affirmance will prevent the mother from ever challenging the issue of paternity in an appropriate action pursuant to the UPA.
Citing Ala.Code 1975, § 26-17-10(d), a part of the UPA, and Ex parte State of California, the State has petitioned for certiorari review, arguing that the Court of Civil Appeals erred in holding that the trial court lacked jurisdiction to make a determination of paternity. The State does not contest or challenge the finding in Ex parte State of California that, where necessary, paternity must be established before the entry of an order of support. However, it is the State's position that the Court of Civil Appeals misinterpreted the decision in Ex parte State of Californiathat that case does not hold that the establishment of paternity cannot be obtained through an action filed under URESA. Rather, the State asserts that "the establishment of paternity through URESA is clearly available under Alabama statutory law" that pursuant to § 26-17-10(d), "paternity may be established through URESA, provided the provisions of the UPA are followed and applied in [an] interstate paternity case." According to the State, although Alabama's URESA statute does not specifically address the establishment of paternity, § 26-17-10(d) of the UPA addresses and specifically provides for the establishment of paternity through Alabama's URESA process, which is a procedural mechanism for the enforcement of duties of support but which does not provide additional substantive grounds for determining the existence of a duty of support. In other words, the State contends that the legislature has, through the State's child support enforcement and paternity statutes, provided a procedure for establishing paternity and the underlying duty of support in an interstate case, and that the holding in Ex parte State of California did not abrogate, or waver from, those principles of law. We agree.
Section 26-17-10(d) reads as follows:
The plain meaning of § 26-17-10(d) clearly supports the state's argument that paternity may be established through a URESA action as long as the provisions of the UPA are followed and applied. Furthermore, although a first reading of Ex parte State of California would suggest that two separate actions are requiredone to determine paternity under the UPA and then, if applicable, a second to determine a duty of child support under URESAa close and careful examination of that case, especially in light of the final result reached, indicates that Ex parte State of California does not stand for the proposition that paternity must be determined in an action filed under the UPA and then child support determined in a separate *667 action filed under URESA. Rather, in Ex parte State of California, the Court, in determining whether the circuit court had jurisdiction over the issues of child support and paternity, and, if it did, whether the alleged father was entitled to a jury trial on the issue of paternity, merely reiterated that before a court can determine whether child support is owed and a corresponding duty of support can be enforced under URESA, paternity must first be determined in accordance with the UPA. In so indicating, the Court cited § 26-17-10(d), which is the section of the UPA that specifically addresses and allows for the determination of paternity or nonpaternity and the corresponding duty, if any, of child support to be determined in one action.
The judgment of the Court of Civil Appeals is reversed and the case is remanded for that court to determine whether the trial court's finding for the alleged father was plainly and palpably erroneous.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
[1] When this action was filed, P.C. was a resident of Ohio and the alleged father, E.B.M., was a resident of Alabama. | September 6, 1996 |
4df1aaa0-0b48-4b96-9421-f7f116360225 | General Motors Corp. v. Bell | 714 So. 2d 268 | 1950506, 1950508 | Alabama | Alabama Supreme Court | 714 So. 2d 268 (1996)
GENERAL MOTORS CORPORATION and General Motors Acceptance Corporation
v.
Charles BELL and Charles Bell Motor Company, Inc.
Charles BELL and Charles Bell Motor Company, Inc.
v.
GENERAL MOTORS CORPORATION and General Motors Acceptance Corporation.
1950506, 1950508.
Supreme Court of Alabama.
September 20, 1996.
Rehearing Applications Denied May 8, 1998.
*271 Warren B. Lightfoot and Madeline H. Haikala of Lightfoot, Franklin & White, L.L.C., Birmingham; Anthony A. Joseph of Johnston, Barton, Proctor & Powell, Birmingham; Jock M. Smith, Tuskegee; Jess H. Dickinson of Page, Manning, Peresich, Dickinson & McDermott, Gulfport, Mississippi; and David M. Heilbron and Robert L. Ebe of McCutchen, Doyle, Brown & Enersen, San Francisco, California, for appellants/cross appellees General Motors Corporation and General Motors Acceptance Corporation.
Fred D. Gray and Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray and Nathanson, Tuskegee; Justice D. Smyth III and Philip H. Butler of Robison & Belser, P.A., Montgomery; and J. D. Smyth, Jr., of Smyth Firm, Luverne, for appellees/cross appellants Charles Bell and Charles Bell Motor Company, Inc.
HOUSTON, Justice.
The defendants, General Motors Corporation ("GM") and General Motors Acceptance Corporation ("GMAC"), appeal from a judgment entered on jury verdicts in favor of the plaintiffs, Charles Bell, an individual, and Charles Bell Motor Company, Inc. ("the dealership"), totaling $18,838,000, in an action based on allegations of misrepresentation, suppression, and wantonness (1950506). The plaintiffs cross appeal, arguing that the State should not share in its award of punitive damages (1950508).[1] We reverse and remand *272 as to 1950506. We dismiss as to 1950508.
The evidence, either undisputed or viewed in the light most favorable to the plaintiffs (as required by our standard of review), indicates the following: Charles Bell Motor Company became an authorized GM dealer in 1979. The dealership's primary geographic area of responsibility consisted of the City of Tuskegee and certain other communities in Macon County and several surrounding counties. From the outset, GMAC, a wholly owned subsidiary of GM, provided the primary wholesale and retail financing for the dealership. GMAC financed the dealership's purchases of vehicles from GM ("floor plan" financing) and purchased the dealership's retail sales installment contracts ("retail paper") that it had negotiated with its customers. GMAC also provided financing for capital improvements to the dealership (new dealership facilities). The dealership struggled in the early 1980s; however, beginning about 1983 and continuing through 1987 the dealership enjoyed financial success. The dealership began to struggle again after 1987, losing money in 1988, 1989, and 1991. Through the years, good and bad, GM and GMAC attempted to provide substantial assistance and financial support to the dealership.[2] By 1992, however, the dealership's financial condition was deteriorating rapidly, as was Bell's business relationship with GM and GMAC. After learning that Bell was secretly taping his telephone conversations with representatives of GM and GMAC and that Bell was contemplating taking legal action against them, GMAC conditioned any further financial assistance to Bell on Bell's signing a release of any claims that he might have had against GMAC and its "affiliated companies" arising out of their previous financial transactions. Bell refused to sign the release, and the dealership, which could not obtain financing elsewhere, defaulted on its financial obligations and ceased operations.
Bell and the dealership filed this action, alleging that GM and GMAC had conspired to put the dealership out of business and seeking both compensatory and punitive damages. Specifically, the plaintiffs alleged that GM had violated the Motor Vehicle Franchise Act, Ala. Acts 1981, No. 81-390, *273 codified at Ala. Code 1975, § 8-20-1 et seq. ("the Dealer Act"), by, among other things, 1) refusing to compensate the dealership for warranty work at the same rates that the dealership charged its retail customers for similar non-warranty service and repairs (see § 8-20-7); and 2) coercing or attempting to coerce the dealership to accept delivery of vehicles that it had not ordered and did not want (see § 8-20-4(1)(a)). The plaintiffs further alleged that GMAC had violated the Dealer Act by, among other things, attempting to condition its approval of a request by the dealership for a loan renewal on the dealership's executing a release in favor of GM and GMAC (see § 8-20-4(3)m.). The plaintiffs also alleged that GM and GMAC had made material misrepresentations, or had suppressed material facts, all for the purpose of putting the dealership out of business. The plaintiffs alleged, in the alternative, that GM and GMAC had acted wantonly in their dealings with the dealership and that their wanton acts had caused it to go out of business. In addition to seeking damages for emotional distress under his misrepresentation, suppression, and wantonness theories, Bell, alleging that GM and GMAC had intentionally caused him emotional distress, also sought damages based on the tort of outrage.
At the trial, GM and GMAC moved for directed verdicts at the close of the plaintiffs' case-in-chief and at the close of all the evidence, asserting that the evidence was not sufficient to submit the plaintiffs' claims to the jury. The trial court denied those motions; however, at the close of all the evidence, the plaintiffs voluntarily dismissed their Dealer Act and conspiracy claims, and Bell dismissed his outrage claim. Thus, the only claims actually submitted to the jury were those for compensatory and punitive damages based on allegations of misrepresentation, suppression, or wantonness on the part of GM and GMAC separately. The jury found in favor of the dealership and awarded it compensatory damages of $1,500,000 against GM and $1,500,000 against GMAC. The jury also assessed $10,000,000 in punitive damages against GM and $10,000,000 in punitive damages against GMAC. The jury awarded Bell, individually, $1,500,000 in compensatory damages for emotional distress against GM and $1,500,000 against GMAC. GM and GMAC moved for a judgment notwithstanding the verdict, again challenging the sufficiency of the evidence, or, in the alternative, for a new trial or a remittitur. The trial court denied the JNOV and new trial motions, but ordered a remittitur of the dealership's compensatory damages awards against GM and GMAC to $1,096,000 and $1,242,000 respectively, thus approving a total compensatory award to the dealership of $2,338,000. The trial court reduced each of the punitive damages assessments against GM and GMAC to $8,000,000, thus approving a total punitive award to the dealership of $16,000,000. Bell's individual awards against GM and GMAC were each reduced to $250,000, leaving intact a total compensatory award for Bell in the amount of $500,000. The plaintiffs accepted the remittiturs. GM and GMAC appealed.
The dispositive issues in this case concern whether the evidence was legally sufficient to submit the plaintiffs' claims to the jury. A motion for a directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. A motion for a judgment notwithstanding the verdict permits the trial court to revisit its earlier ruling denying the motion for a directed verdict. The ultimate question, as to either motion, is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. For actions filed after June 11, 1987, the standard of review applicable to motions for a directed verdict and for a judgment notwithstanding the verdict is the "substantial evidence rule." See Ala. Code 1975, § 12-21-12. Thus, in an action filed after June 11, 1987, a nonmovant must present substantial evidence supporting each element of his cause of action to withstand a movant's motion for a directed verdict or for a judgment notwithstanding the verdict. However, a nonmovant must present "clear and convincing evidence" supporting each element of his cause of action to withstand the movant's motion for a directed verdict or for a judgment notwithstanding the verdict with respect to a claim for punitive damages. See *274 Ala. Code 1975, § 6-11-20; Ex parte Norwood Hodges Motor Co., 680 So. 2d 245 (Ala. 1996). This calls for a purely objective determination of whether the party having the burden of proof has produced sufficient evidence to create a factual dispute requiring resolution by the jury. In reviewing a motion for a directed verdict and a motion for a judgment notwithstanding the verdict, this Court must view all the evidence in the light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw. Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992).
GMAC provides retail financing for a GM dealership by purchasing its retail paper. The customer and the dealership determine the finance rate and other terms of the sale before they enter into their contract. Dealerships generally sell these contracts to third parties, such as banks or financing companies. This allows the dealership to immediately obtain the money due under the contract and relieves it of the administrative burden of collecting the payments. After GMAC buys a contract from a dealership, it collects the payments directly from the customer.
The rate at which GMAC buys retail paper from a dealership (the "buy rate" or the "discount rate") is not necessarily the same as the finance rate that the dealership negotiates with its customer. When GMAC's buy rate is lower than the dealership's customer rate, the difference between the two rates is additional profit to the dealership. This profit is called the dealership's "participation." When GMAC buys retail paper, it pays the dealership up front the entire value of the contract, including any participation, even though the customer has not yet paid GMAC anything, and even though the customer will pay over time.
When Bell became a GM dealer in 1979, GMAC agreed to buy retail paper from his dealership under a recourse agreement. Under that agreement, if a customer defaulted, the dealership had to pay GMAC the unpaid balance on the contract. If the vehicle was repossessed, it was returned to the dealership and the dealership was responsible for disposing of it. In 1980, Bell signed an agreement providing for GMAC to buy the dealership's retail paper on a modified nonrecourse basis. Under this agreement, GMAC would assume the responsibility for maintaining the account, including the handling of any repossession and resale of the vehicle, and absorbing any loss that resulted. Use of a nonrecourse plan limits a dealership's exposure, but increases GMAC's risk of loss. GMAC attempts to manage this increased risk in various ways. GMAC's buy rate is higher under the nonrecourse plan than under the recourse plan. Dealerships agree under the nonrecourse plan that GMAC's buy rate will include an additional amount ("nonrecourse reserve increment"), which GMAC does not keep as profit for itself, but instead sets aside in a reserve account used to cover losses that are anticipated from repossessions involving a dealership's contracts. GMAC branch managers are responsible for monitoring each dealership's loss reserve account to make sure that it stays around zero. The account balance can become negative when repossession losses exceed the amount reserved for them. When that happens, GMAC suffers a loss. The number of repossessions that a particular dealership experiences depends largely on the amount of marginal (risky) retail paper that has been purchased from that dealership. If a dealership's reserve account balance becomes negative, GMAC managers may address the problem in various ways. Some approaches are designed to increase the amount available in the reserve account to cover losses; others reduce the number of losses drawing on the account. To add money to the reserve account, the branch manager could raise the dealership's loss increment (and thus its buy rate). But this would apply to all of that dealership's contracts, whether or not they go into default, and could make its prices and rates less competitive. To reduce the number of losses, managers can adjust the branch's purchase policy for the dealership's retail paper by telling GMAC employees to watch for the dealership's riskier paper and to buy less of it.
*275 Each of these alternatives can adversely impact a dealership's ability to sell vehicles. GMAC has therefore developed other alternatives less burdensome to a dealership for reducing GMAC's repossession exposure and for managing a loss reserve. These alternatives are referred to as "modifications" to the nonrecourse agreement, and they reduce the amount of the loss that must be taken out of the dealership's reserve account in the event of repossession. One of these modified plans, referred to among GMAC employees as "Modification C" or "Mod C," charges the dealership back for the full participation that GMAC paid the dealership when it purchased the contract (i.e., the dealership's profit on the financing), up to the amount of the repossession loss. Thus, the dealership agrees to pay back more than the prorata portion of its participation. By contrast, nonrecourse dealerships not on a modified plan are charged back on a prorata basis the portion of their participation that the customer did not pay before repossession (this is referred to generally as the rule of 78). GMAC's Montgomery branch included between 45 and 50 dealerships in 1991. A substantial majority of those dealerships (between 35 and 40), including Bell's dealership, were on Modification C. Modification C reduces GMAC's risk from repossession, so that it can buy more retail paper from the dealerships, thus allowing the dealerships the opportunity to sell more vehicles. Moreover, a dealership is never charged back under Modification C if the customer pays in accordance with his contract, and it never has to pay toward a repossession loss more than the amount of the participation that GMAC paid it to begin with. By contrast, another modification, "D," requires a dealership to share in the loss beyond refunding its participation.
Dealerships wanting to sell GMAC a contract generally telecopy (fax) the customer's application to GMAC for review before it is finalized. GMAC enters the information about the customer and the proposed transaction into its computerized "Mechanized Application Processing System" ("MAPS"). The report generated by MAPS is used by GMAC as an aid in determining whether to buy a contract. MAPS evaluates the proposed contract by determining its payback potential. By examining the customer's background and credit history, MAPS develops mathematical "odds" that the customer will not default. The MAPS score determines which of a number of "tiers" the contract is assigned tofrom A to D, with A being the most favorable rating. GMAC charges an increasingly higher buy rate with each tier. In exercising their judgment, GMAC employees evaluate not only the odds that the customer will default on the contract, but also how large any potential loss would be. They take into account the amount of money GMAC is being asked to put at risk, the value of the collateral securing the transaction (the vehicle's wholesale value), and the difference between the two. On occasion, GMAC may condition ("qualify") acceptance of a contract on changes being made to the agreement, such as a large down payment, that will reduce the amount GMAC will have at risk. Branch managers do not usually review the decisions by GMAC employees concerning a contract before the decision is communicated to the dealership. Dealerships that disagree with the decision may attempt to negotiate better terms with GMAC, sometimes by appealing to a branch manager or other upper management. However, the dealership's 1980 agreement providing for GMAC to buy retail paper under the modified nonrecourse plan stated that GMAC would buy only contracts "acceptable to us [GMAC]."
The dealership based its misrepresentation claim against GMAC on allegations that GMAC's control branch manager, Bennett Hall, as well as other representatives of GMAC, had represented to Bell that the dealership had the same benefits that all the other dealerships had and allegations that this representation was false. The dealership based its suppression claim on allegations that other dealerships were being treated differently (more favorably) and that Hall and others had suppressed that information. The wantonness claim was based on allegations that GMAC had consciously decided to treat the dealership differently from other GM dealerships, knowing that damage to the dealership was likely to result from such disparate treatment. The alleged differences *276 in treatment concerned two aspects of GMAC's financial interactions with the dealershipthe repossession chargeback agreement (Modification C) between GMAC and the dealership that governed the rights of the parties in the event an installment contract went into default and the financed vehicle was repossessed, and GMAC's purchase of the dealership's retail paper.
As previously noted, Bell signed an agreement in 1980 providing for GMAC to buy the dealership's retail paper on a modified nonrecourse basis. Under this agreement, GMAC charged the dealership back for the full participation that GMAC had paid the dealership when it purchased the contract, up to the amount of the repossession loss. The dealership's misrepresentation claim was based in part on allegations that Hall had misrepresented to Bell in 1980 and on other unspecified occasions that the dealership had the same benefits that all the other dealerships had and allegations that that representation was false because, according to the dealership, from 1980 up to the fall of 1991, when the dealership was removed from the Modification C plan, the dealerships located on the eastern bypass in Montgomery were not on a modified nonrecourse plan, but, instead, were charged back on a prorata basis (under the rule of 78). GMAC contends that the dealership failed to establish that Hall's representations were, in fact, false. After reviewing the record, we must agree.
The statutory basis for the dealership's misrepresentation claim is Ala. Code 1975, § 6-5-101, which provides:
The elements of a misrepresentation claim are 1) a misrepresentation of a material fact, 2) made willfully to deceive or recklessly without knowledge, 3) which was justifiably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence. Harrington v. Johnson-Rast & Hays Co., 577 So. 2d 437 (Ala.1991).
The evidence, viewed in the light most favorable to the dealership, does indicate that Hall made the "same benefits" representation in 1980 at the time the repossession chargeback agreement was signed and on certain unspecified occasions thereafter. However, we can find no evidence tending to show what chargeback plan the Montgomery bypass dealerships were on before 1990. The record is silent on that point. The evidence does show that the Montgomery bypass dealerships were on an unmodified nonrecourse plan in 1990 and thereafter. The evidence also indicates that Hall left his position as branch manager in early 1991. Therefore, the only way any representation on Hall's part could be actionable was if such a representation had been made in 1990 or early 1991, when, according to the evidence, Hall was still the branch manager and the Montgomery dealerships were not on a modified nonrecourse plan. The record, however, does not disclose when Hall's post-1980 representations concerning dealership benefits were actually made.[3] Contrary to the position *277 taken by the dealership, this failure of proof is not insignificant.[4] The burden was clearly on the dealership to prove that Hall had made a false representation of material fact. Because the dealership failed in this respect, it could not base its misrepresentation claim on any statement that may have been made by Hall.
The dealership also based its misrepresentation claim on allegations that Milton Edrington, who replaced Hall as control branch manager, had also misrepresented to Bell in 1991 that the dealership was on the same chargeback plan as the Montgomery bypass dealerships. The record does support the dealership's allegations in this regard. The essence of the dealership's misrepresentation claim, as we understand it, was that Bell's lack of knowledge that GMAC would consider putting the dealership under a different nonrecourse chargeback plan effectively prevented him from negotiating for such a plan.[5] Edrington replaced Hall as control branch manager in January 1991. The bypass dealerships were not on the Modification C plan in 1991. Bell's testimony indicates that sometime after Edrington replaced Hall, but before he discovered from another GM dealer, Larry Puckett (a Chevrolet dealer in Prattville), that he was not on the same plan as Puckett, Bell asked Edrington if his dealership was on the same repossession chargeback plan as the Montgomery bypass dealerships. Bell testified as follows:
(Emphasis added.) The evidence indicates that Edrington misrepresented to Bell, up until Bell confronted him with the information that he had obtained from the other GM dealer, that his dealership was under the same repossession chargeback plan as the Montgomery bypass dealerships, and that Bell relied on that misrepresentation by not attempting earlier to renegotiate his chargeback agreement with GMAC. Bell testified as follows:
For the reasons set out above, we conclude that GMAC was not entitled to a judgment as a matter of law on this aspect of the dealership's misrepresentation claim.
The dealership based its suppression claim on allegations that GMAC did not inform it that Modification C was not the only nonrecourse chargeback plan available to GM dealerships. Specifically, the dealership argues that GMAC should have disclosed to it that the Montgomery bypass dealerships were on a different nonrecourse chargeback plan. GMAC argues that the terms of its contracts with other dealerships were confidential and that it was under no legal duty to disclose to the dealership the nature of other chargeback plans that other dealerships may have been operating under.
Initially, we note again that the record contains no evidence tending to show what chargeback plan the Montgomery bypass dealerships were on before 1990. Therefore, the dealership's suppression claim would have to be based on an alleged failure on the *280 part of GMAC (Hall and Edrington) to disclose this information during 1990 and thereafter.
The statutory basis for the dealership's suppression claim is Ala. Code 1990, § 6-5-102, which provides:
The elements of a suppression claim are 1) a duty to disclose the facts, 2) concealment or nondisclosure of material facts by the defendant, 3) inducement of the plaintiff to act, and 4) action by the plaintiff to his injury. Wilson v. Brown, 496 So. 2d 756 (Ala.1986). Under § 6-5-102, silence is not fraud unless an obligation to communicate a material fact exists. Such an obligation may arise where a confidential relation or "particular circumstances" exist. Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621 (Ala.1986).
This Court has defined a "confidential relationship" as follows:
See Holdbrooks v. Central Bank of Alabama, N.A., 435 So. 2d 1250, at 1252 (Ala.1983), quoting 15A C.J.S. Confidential (1967).
There is no question that the dealership and GMAC were, at all times, dealing with each other at arm's length. The evidence shows that Bell was intelligent and knowledgeable about the workings of an automobile dealership. In short, he was an experienced businessman. The evidence also shows that GMAC was in business to purchase retail paper from GM dealerships, provided that that paper was acceptable to GMAC. Although Bell sought, and GMAC provided, advice and financial assistance to the dealership, there is no evidence indicating that a confidential relationship existed between the dealership and GMAC that would impose a duty on GMAC to inform the dealership that Modification C was not the only nonrecourse chargeback plan used by GMAC. See Norman v. Amoco Oil Co., 558 So. 2d 903 (Ala.1990), wherein this Court held that Amoco was under no duty to give a detailed explanation of its "profitability index" to one of its franchisees (Norman), even though Amoco used that index as a basis for not renewing Norman's contract. There is no evidence that GMAC was under any contractual obligation to allow the dealership to pick and choose which plan it would operate under. To the contrary, the evidence indicated that the majority of the dealerships in the Montgomery branch had at one time or another been on the Modification C plan, presumably to reduce the risk of loss to GMAC resulting from its purchase of marginal or risky retail paper. In this respect, GMAC's relationship with the dealership was similar to that of creditor and debtor, much like the relationship that exists between a bank and its customer, where the creditor dictates the terms for extending credit. In the absence of special circumstances, such as when a customer reposes trust in a bank and relies on financial advice, no fiduciary or confidential relationship exists between a creditor and a debtor. See Power Equipment Co. v. First Alabama Bank, 585 So. 2d 1291 (Ala.1991).
Application of the "particular circumstances" language contained in § 6-5-102 necessarily requires a case-by-case consideration of several factors. Quoting from Jim Short Ford Sales, Inc. v. Washington, *281 384 So. 2d 83, 86-87 (Ala.1980), this Court, in Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So. 2d 496, 505 (Ala.1984), stated:
Before an obligation to disclose can be imposed under the "particular circumstances" of a case, the relationship existing between the parties, while not necessarily required to be confidential, must nonetheless be such that a disclosure of material information is dictated. In Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238, 246 (Ala.1992), this Court, citing Norman v. Amoco Oil Co., supra, noted that "[w]hen the parties to a transaction deal with each other at arm's length, with no confidential relationship, no obligation to disclose arises when information is not requested." (Emphasis added.) As previously noted, GMAC had the right to contractually limit its exposure by requiring the dealership to participate in the Modification C plan as a condition to its purchasing the dealership's retail paper. GMAC was certainly within its rights in doing this to protect its financial interests. Considering the particular business enterprise involved here; the fact that Bell was an experienced businessman; the fact that it was GMAC's policy to treat as confidential its business dealings with individual GM dealerships; and the fact that GMAC was under no contractual obligation to allow the dealership to participate in any particular chargeback plan, we cannot hold that GMAC was under any general legal duty to disclose to the dealership the existence of other nonrecourse chargeback plans that it was using with other dealerships. Therefore, as our previous discussion illustrates, because there is no evidence indicating that Hall made a misrepresentation to the dealership with respect to the chargeback plan, the dealership could not base its suppression claim on any allegations of nondisclosure by Hall. However, because the evidence indicates that Bell specifically asked Edrington about the chargeback plan and that Edrington misrepresented that the dealership was on the same plan as the Montgomery bypass dealerships, a duty on GMAC's part to disclose the truth arose.[6] When a party, in a commercial setting, elects to make a representation, the party is under a duty to make a full and fair disclosure. This duty is not unlike the obligation that may arise between parties in a confidential or fiduciary relationship. See Sperau v. Ford Motor Co., 674 So. 2d 24 *282 (Ala.1995), judgment vacated 517 U.S. 1217, 116 S. Ct. 1843, 134 L. Ed. 2d 945 (1996). Therefore, GMAC was not entitled to a judgment as a matter of law with respect to the dealership's suppression claim.
With respect to the wantonness claim, GMAC was under no contractual obligation to let the dealership operate under an unmodified nonrecourse chargeback plan, and there is no common law duty that we are aware of that would preclude a finance company, such as GMAC, from dictating reasonable terms to govern its purchasing of retail sales contracts from a company such as the dealership. The dealership had no legal basis for insisting that it be allowed to operate under the chargeback plan of its choosing. The absence of a duty on the part of GMAC in this respect was fatal to the dealership's wantonness claim, and the trial court erred in submitting that claim to the jury.
The dealership specifically alleged that GMAC's representatives had misrepresented to it that it was being treated the same "as the Montgomery bypass dealers," because, it says, GMAC was buying less of its retail paper than it was buying from those Montgomery dealerships. This alleged disparate treatment also formed the basis for the dealership's suppression claim (that GMAC did not disclose that it was treating the Montgomery bypass dealerships more favorably by buying more of their retail paper), as well as its wantonness claim (that GMAC consciously disregarded the consequences of intentionally discriminating against the dealership in its retail paper purchasing policies).
After carefully reviewing the briefs, and after an exhaustive review of the record, we conclude that there was insufficient evidence for a jury to reasonably find that Hall, or any other representative of GMAC, lied to Bell about GMAC's retail paper purchasing policies. The record discloses no contract requiring GMAC to buy any particular amount of the dealership's retail paper. To the contrary, the dealership's 1980 agreement with GMAC stated that GMAC would buy contracts "acceptable to us [GMAC]." The dealership's misrepresentation claim is based, in part, on allegations that Gregory Bemister, Hall's assistant, had told Bell that GMAC was "buying deeper into the pot" and that GMAC was treating the dealership the same "as the Montgomery bypass dealers." Bell testified as follows as to what was meant by "buying deeper into the pot":
The plaintiffs' attorney explained the phrase during argument at trial, as follows:
Bemister testified as follows:
*283 Another GMAC employee, James Redden, testified that "buying deeper to me just meant buying more marginal deals."
Milton Edrington, who replaced Hall on January 1, 1991, testified that he told Bell later that year that the dealership "was being treated like other dealers in his area" and that the dealership "was receiving the same considerations as all the dealers in his area." Edrington explained:
Edrington also answered in the affirmative when asked whether giving the dealership "the same consideration as any other dealership... sometimes result[ed] in a different decision for the Bell dealership"; however, he answered in the negative when asked whether GMAC ever made such a different decision "that [GMAC] felt was not justified because of the financial condition."
The dealership advertised across the country with a toll-free telephone number and ran a number of print media ads for customers with "low credit, little money, no credit, weak credit." Bell understood, however, that GMAC would buy contracts with people who had low credit and little money only "[i]f they [GMAC] found that it was a good customer." In July 1991, Bell began complaining to GMAC that it was not buying the dealership's retail paper at "branch average." However, the record indicates that the dealership was sending GMAC an extraordinarily higher percentage of contracts rated in the worst category of "very high risks" than other dealers sent. GMAC nonetheless was buying the dealership's retail paper at branch average. As a result, GMAC experienced a repossession rate almost twice the branch average on the dealership's retail paper. Thus, it is clear that GMAC bought many marginal contracts from the dealership. Even with chargebacks under Modification C, the dealership's loss reserve was $200,000 in the negative as of mid-1991.
Bell also complained in 1991 that the dealership's approval rate was low because GMAC's personnel in charge of approving the purchase of retail paper were not evaluating his contracts thoroughly. Because GMAC felt that the dealership's high employee turnover was causing incomplete applications to be presented to GMAC, GMAC created a special system to increase the likelihood that the dealership's retail paper would be approved. Under this system, a contract that might otherwise have been rejected was to be reviewed to identify any important missing information that the dealership might be able to supply. In addition, before the responsible GMAC employee informed the dealership that GMAC was rejecting or conditioning a dealership contract, it had to be reviewed by management. The evidence showed that some contracts were approved by GMAC that otherwise would not have been. At the dealership's request, it was taken off Modification C in the fall of 1991. Despite the dealership's large negative loss reserve balance, there is no indication that GMAC adjusted its purchase policy or decreased its buy rate for the dealership.
The dealership called an economist, Charles Carter, to testify in support of its allegations that GMAC had falsely represented that it was "buying deeper into the pot" and that it was treating the dealership "just like all the rest" of the dealerships. Carter performed a computer analysis of GMAC's purchases of retail paper from the dealership. However, Carter did not compare GMAC's purchases from the dealership with the "branch average" of GMAC's purchases from the other GM dealerships in the branch. Nor did Carter compare GMAC's purchases of retail paper from the dealership with GMAC's purchases from all those dealerships that were not sending all or most of their contracts to GMAC. Furthermore, Carter did not analyze the extent to which GMAC agreed to buy contracts from the dealership that GMAC's "competition [other banks or financial institutions] normally wouldn't" have bought. Instead, Carter compared GMAC's purchases of retail paper from the dealership with its purchases from three dealerships on the eastern bypass in Montgomery *284 by comparing the MAPS scores of a number of applications submitted to GMAC for approval. Carter made this comparison even though he had no evidence that the financial condition, repossession rate, or other circumstances of any of the bypass dealerships were comparable to those of Bell's dealership. Carter concluded that between 1986 and 1993 GMAC rejected approximately 52% of the dealership's applications and that GMAC would have approved about 25% of the dealership's rejected applications if GMAC had purchased contracts from the dealership at the same rate and with the same MAPS scores that it did from the three bypass dealerships.[7] (This would have amounted to 25% of the 52% that were rejected, or approximately 13% with respect to the total number of applications submitted.) Carter concluded that the discrepancy between the rate at which GMAC purchased retail paper from the dealership and the rate at which GMAC purchased retail paper from the dealership's Montgomery bypass competitors was "statistically significant"; however, he offered no opinion as to why there should have been a difference between the amount of retail paper purchased from the dealership and the amount purchased from the other three dealerships.
Although Bell testified that he had been told by Hall and others that GMAC had no discretion to override the MAPS scoring with respect to a credit application, GMAC presented witnesses who explained, without contradiction, that a contract's MAPS odds score was only the beginning of GMAC's analysis and that MAPS odds and reports were only a tool for GMAC to use in deciding whether to agree to purchase a contract.[8] An additional important factor for GMAC concerned how much it was being asked to finance above the collateral's wholesale value. The undisputed evidence suggested that the greater the spread between the amount financed and the collateral's wholesale value the higher GMAC's risk was and the less likely it would be to agree to buy a given contract. Customers with identical MAPS odds scores could be turned down at one dealership but approved at another, if one dealership charged the customer more for the same vehicle than the other dealership did or if the information contained in the two applications with respect to the two customers was different.[9] The dealership's gross profits per new *285 car sold were higher than the average for other dealerships in its zone. A former manager of the dealership testified that a number of its potential retail sales had "too much profit" built into them to get approved by GMAC and that he had had to "restructure" some of the dealership's deals in order to get them approved by GMAC. Carter did not take this into account. In fact, Carter's data showed that even the Montgomery bypass dealerships experienced different rates of acceptance and rejection of retail paper that MAPS had scored the same. To sum up, the dealership's evidence (Carter's testimony) did show that GMAC had declined to purchase a "statistically significant" percentage of the dealership's retail paper, in comparison to GMAC's purchase of retail paper from the Montgomery bypass dealerships. However, the basic issue presented by the dealership's misrepresentation claim was not whether the dealership had had a "statistically significant" amount of its retail paper rejected by GMAC, as compared to the bypass dealerships, or whether the dealership would have possibly made more money had GMAC purchased more of its retail paper. The dispositive issue was whether GMAC had provided the dealership with the same "benefits" or had treated the dealership the "same," vis-à-vis the Montgomery bypass dealerships. The evidence simply did not show that Hall's representations that GMAC was "buying deeper into the pot" and that the dealership had the same benefits that all the other dealerships had were false. The only reasonable inference one could draw from the evidence is that GMAC based its purchasing decisions primarily on the financial risks involved in accepting a particular dealership's retail paper. Our examination of the record, including Carter's testimony, has revealed no evidence from which one could reasonably infer that GMAC discriminated against the Bell dealership and in favor of any dealership on the eastern bypass in Montgomery by deliberately buying more retail paper from those dealerships than it did from the Bell dealership. To the contrary, the record is replete with testimony indicating that GMAC worked diligently with the dealership to ensure that those contracts that could, from a sound business perspective, be purchased were in fact purchased. Therefore, we conclude that the evidence was insufficient to support the dealership's misrepresentation and suppression claims, for they were based on allegations that GMAC either misrepresented that it was treating the dealerships the same as the Montgomery bypass dealerships or did not disclose that it was treating the bypass dealerships more favorably by buying more of their paper.
As to the wantonness claim, the dealership argues in its brief that it "established from the evidence that `with knowledge of the danger or [with] a consciousness that injury was likely to result from an act or omission to act,' GMAC nevertheless purposefully and intentionally defrauded [it] with regard to the matter of retail paper buying policies, procedures, and actual practice." According to the dealership, "[t]here clearly was a `conscious appreciation of the wrong' because Bennett Hall, [Milton] Edrington and Greg Bemister all, separately and severally, made the same misrepresentations and suppressed the same information from Charles Bell." This argument suggests that there is a cause of action in Alabama for "wanton intentional fraud." The legislature has defined "wantonness" as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." See Ala. Code 1975, § 6-11-20(b)(3). This definition is consistent with our basic understanding of the difference between willfulness and wantonness. See, e.g., Dixie Electric Co. v. Maggio, 294 Ala. 411, 414, 318 So. 2d 274, 276 (1975), wherein Justice Shores, writing for this Court, noted:
See, also, Rosen v. Lawson, 281 Ala. 351,356, 202 So. 2d 716, 720 (1967) ("[i]n wantonness, the party doing the act or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury").
The dealership has made it very clear in its written and oral arguments to this Court that its fraud claims were based on allegations that GMAC set out intentionally to put it out of business. Thus, we find unpersuasive any suggestion that the dealership can piggyback its wantonness claim on its fraud claims. A concept of a "wanton intentional fraud" would be an unacceptable contradiction in the law.
However, as we understand the complaint, the dealership's wantonness claim was actually based on allegations that GMAC had consciously treated the dealership differently from other GM dealerships (namely, those on the Montgomery bypass) by buying on average more retail paper from those other dealerships. According to the dealership, GMAC knew that this alleged disparate treatment was likely to result in financial loss to the dealership. In this regard, we note that GMAC was under no contractual obligation to buy any particular amount of the dealership's retail paper. To the contrary, the dealership's 1980 agreement with GMAC stated that GMAC would buy contracts "acceptable to us [GMAC]." Thus, GMAC owed no duty to the dealership, outside the confines of its agreement with the dealership, to purchase the same amount of retail paper that it was purchasing from other GM dealerships, including those on the Montgomery bypass. See Cahaba Seafood, Inc. v. Central Bank of the South, 567 So. 2d 1304 (Ala.1990). And, as previously noted, the evidence was insufficient to show that GMAC did not, relatively speaking, treat the dealership the "same" as the Montgomery bypass dealerships, insofar as purchasing retail paper was concerned. The wantonness claim should not have been submitted to the jury.
The dealership's fraud claims against GM were based on allegations that GM had misrepresented that it would enforce its rules governing the purchase of "program"[10] vehicles from GM-Sponsored auctions against all GM dealerships, and that GM had failed to disclose (had suppressed) that it did not uniformly enforce its rules. The dealership also alleged that GM had engaged in wanton conduct by consciously violating § 8-20-4(3)a., a part of the Dealer Act (by enforcing the auction rules against it but not against other GM dealerships), knowing that such a violation would likely or probably result in injury to the dealership.
The pertinent facts surrounding these claims are as follows: GM began auctioning program vehicles to its authorized dealerships in the mid-1980s. Certain written rules governed the purchase of these program vehicles, including the following set out in a "GM-Sponsored Auction Policies and Procedures" manual:
Bell received and understood these rules. George Schmid, the manager of GM's Pontiac Division's Atlanta zone, testified that he had informed Bell that the auction rules had to be "strictly observed by all the dealers." The representations set out in GM's policies and procedures manual and the representation made by Schmid formed the primary basis for the dealership's misrepresentation claim. In December 1989, GM suspended the dealership's auction privileges because, according to GM, the dealership had violated the auction rules in the manner in which it had purchased and disposed of a number of program vehicles.[11] Auction privileges were eventually restored to the dealership, with the assistance of Schmid; Lee McDaniel, a representative of GM's Minority Dealer Development Department; and Bill Johnson, a GM auction coordinator. The dealership continued thereafter to purchase vehicles at auction. This suspension did not form the basis of the dealership's claims against GM.
However, according to Bell, he was later told by an unidentified person at a GM-sponsored auction in Moody, Alabama, that he could not purchase 25 vehicles. Bell testified that Gordon Warren, the assistant sales manager of GM's auction department, told him later that the auction personnel had "[done] what they should have [done]" in declining his purchase request. Bell took this to mean that GM was denying his request because he was violating auction rules by attempting to purchase too many vehicles (i.e., more vehicles than would have been necessary "to enhance [the dealership's] selling and leasing efforts in its Area of Primary Responsibility"). GM's apparent reasoning in this regard proved to be correct because, according to the undisputed evidence, Bell had wanted to implement an "enhanced" program vehicle sales policy at his dealership, whereby he would purchase large numbers of program vehicles at auction, hold them for 45 days, and then sell them at wholesale. This plan violated GM's auction rules. Bell planned to finance his auction purchases with the assistance of Bob Lee Alphin, a Georgia used car dealer, who had agreed to invest $1,100,000 in the venture. It was for the purpose of implementing this new "enhanced" program-vehicle purchasing policy that Bell had traveled to the Moody auction.
*288 The dealership based all three of its claims against GM primarily on allegations that GM had not enforced its auction rules against one other GM dealer, Devon Lowe.[12] The evidence indicates that Lowe, who owned, or had an interest in, three GM dealerships, purchased approximately 500 program vehicles per week from GM-sponsored auctions, held them for 45 days, and then sold them wholesale to other dealerships. The evidence also suggests that this volume purchasing was contrary to the intent of the auction rules and that although it had caught the attention of GM's management, no disciplinary action had been taken against Lowe for this activity. According to the dealership, GM discriminated against it by not enforcing the auction rules against Lowe. Also, according to the dealership, GM was guilty of misrepresenting that all GM dealerships had to comply with the auction rules, and of suppressing information that would have indicated that it was not enforcing the rules against Lowe. What we deem to be the linchpin of the dealership's argument, which was made in response to GM's contention that the dealership could prove no damage, is set out in various parts of its brief as follows:
*289 After carefully examining the briefs and the record, we conclude that GM was entitled to a judgment as a matter of law on all three of the dealership's claims. The dealership's argument, as we understand it, is that had it known that GM was not enforcing the auction rules uniformly against Lowe with respect to his volume purchases of program vehicles,[13] it could have filed an action under the Dealer Act and sought damages and injunctive relief. Section 8-20-4(3)a. states that it is an unfair and deceptive trade practice for a manufacturer, such as GM, "[t]o adopt, change, establish, or implement a plan or a system for the allocation and distribution of new or used motor vehicles to motor vehicle dealers which is arbitrary, capricious, or unreasonably discriminatory or to modify an existing plan so as to cause the same to be arbitrary, capricious, or unreasonably discriminatory." Section 8-20-11 provides as follows:
(Emphasis added.)
Thus, we agree with the dealership, based on the evidence before us (which we must view in the light most favorable to the dealership), that it could have filed an action under the Dealer Act and sought damages and injunctive relief based on GM's favorable treatment of Lowe. However, nothing in the Dealer Act or otherwise in the record would indicate that the dealership could have forced GM to change its auction rules so as to allow the dealership to purchase program vehicles in volume for the purpose of selling them at wholesale. Although there was evidence indicating that GM did not enforce the auction rules uniformly with respect to Lowe, there was no evidence that GM did not adequately enforce its rules as to the vast majority of its other dealerships or that it had, or would have, considered modifying its auction rules so as to make it permissible, from a GM policy point of view, for dealerships to purchase program vehicles at auction for the purpose of selling them at wholesale. Stated differently, all the dealership could have accomplished by suing GM under the Dealer Act would have been limited to enjoining GM from discriminating against it by favoring Lowe and to recover whatever damages it might have incurred as a result of Lowe's violation of the rules. We can find no legal basis to support the dealership's argument that it could have sued under the Dealer Act and secured the right to sell 137 vehicles every 45 days at a profit of $500 per vehicle ($1,096,000). Consequently, we can find no legal support for the dealership's contention that it suffered damage as a result of misrepresentation or suppression on the part of GM. The undisputed evidence shows that the dealership was attempting to secure an advantage over GM dealerships on the eastern bypass in Montgomery (who did not participate in the auction program) by violating GM's auction rules prohibiting the volume purchase of program vehicles for the purpose of selling them at wholesale. The dealership based its fraud claims on the faulty premise that it had the right to do this, when, in fact, it had only the right under the Dealer Act to force GM to enforce its rules against Lowe. Because damage is an essential element of a fraud claim, and because the dealership could not prove that any fraud on GM's part arising out of its favorable treatment of Lowe caused it any damage for which it could recover in this fraud action, we hold that the trial court erred in not entering a judgment for GM as a matter of law on the misrepresentation and suppression claims.
*290 As to the wantonness claim, the dealership alleged in its complaint that GM had engaged in "[r]epeated intentional and conscious violations of the relevant provisions of the [Dealer Act]." It argued in its brief on appeal as follows:
As previously noted, the dealership dismissed all of its claims under the Dealer Act. The dealership's wantonness claim is based on a theory that GM breached a duty arising out of the Dealer Act. The dealership does not argue that GM had a duty of common law or constitutional origin to treat all of its dealerships the same insofar as the Auction Program was concerned. By dismissing its claims under the Dealer Act, the dealership foreclosed any finding by the jury that GM had wantonly violated that Act. The wantonness claim against GM should not have been submitted to the jury.
GM and GMAC contend that they were each entitled to a judgment as a matter of law on Bell's individual claims for damages for emotional distress. They argue that the damage or harm for which Bell sought recovery was merely incidental to his status as the sole stockholder of the dealership and, therefore, that his claims were derivative ones that had to be brought on behalf of the corporation. GM and GMAC further point out that the primary allegations of the complaint dealt with perceived wrongs to the dealership and that Bell voluntarily dismissed his personal claims based on the tort of outrage. Bell contends that his claims for damages for emotional distress were not incidental to his stockholder status. He argues, instead, that his damages claims were cognizable under his misrepresentation, suppression, and wantonness theories.
After carefully examining the record, particularly the complaint, we must agree with GM and GMAC that they were each entitled to either a directed verdict or a judgment notwithstanding the verdict with respect to Bell's individual claims for damages. As GM and GMAC point out, it is well settled that when the harm or damage for which a plaintiff seeks recovery are incidental to his or her status as a stockholder in a corporation, the claim is a derivative one and must be brought on behalf of the corporation. Pegram v. Hebding, 667 So. 2d 696 (Ala.1995). In the present case, the thrust of the complaint was that GM and GMAC had acted either intentionally (fraudulently) or wantonly to drive the dealership out of business. Thus, the primary nature of the harm or damage for which Bell sought to recover from GM and GMAC arose out of the alleged loss of dealership funds. See McLaughlin v. Pannell Kerr Forster, 589 So. 2d 143 (Ala. 1991). Any emotional distress suffered by Bell would logically have been caused by such a loss of funding and the resulting demise of the dealership. We must conclude, therefore, that the trial court erred in submitting Bell's personal damages claims to the jury.
Based on the above, we hold that GMAC was entitled to a judgment as a matter of law with respect to Bell's personal claim for damages for mental distress and with respect to the dealership's fraud and wantonness claims arising out of GMAC's purchase of the dealership's retail paper. We also hold that GMAC was entitled to a judgment as a matter of law with respect to the dealership's wantonness claim arising out of the repossession chargeback plan under which the dealership operated for most of its existence. However, we hold that the dealership's evidence was sufficient with respect to its misrepresentation and suppression claims against GMAC arising out of the repossession chargeback plan and, therefore, that the dealership may present these claims to another jury in another trial. Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). Likewise, we hold that GM was entitled to a judgment as a matter of law with respect to Bell's personal claim for damages for mental distress, and with respect to the dealership's fraud and wantonness claims arising out of GM's handling of its auctions. Because of our resolution of the dealership's claims against GMAC and GM, we pretermit any discussion of the new trial issues raised by GMAC and GM (most importantly, their contention that they were entitled to a new trial because of the trial court's refusal to instruct the jury that it was not to consider the dealership's claims under the Dealer Act). Because the dealership has apparently chosen not to pursue any claims that it might have under the Dealer Act, this issue is not likely to arise again on retrial.
1950506REVERSED AND REMANDED.
1950508DISMISSED.
MADDOX, J., concurs.
ALMON and SHORES, JJ., concur in the result.
HOOPER, C.J., concurs in part and dissents in part.
BUTTS, J., dissents.
HOOPER, Chief Justice (concurring in part and dissenting in part).
I concur with the main opinion, except for that portion affirming the trial judge's holding that there was sufficient evidence for a jury to find "misrepresentation of material facts" and "suppression of material facts" against both defendants on the repossession chargeback programs. I respectfully dissent from that portion of the opinion. I would reverse the trial judge's denial of the defendants' directed verdicts as to those claims.
The plaintiff bore the burden of proof in regard to these two causes of action.
Talb, Inc. v. Dot Dot Corp., 559 So. 2d 1054, 1057 (Ala.1990); and see Lamb v. Opelika Production Credit Association, 367 So. 2d 957 (Ala.1979). Therefore, in order to defeat the defendants' motions for directed verdicts, the plaintiff bore the burden of presenting sufficient evidence on each element of fraud and suppression. Macon County Comm'n v. Sanders, 555 So. 2d 1054,1056 (Ala.1990).
The legislature has provided a cause of action for misrepresentation of material facts:
§ 6-5-101, Ala. Code 1975. Moreover, "[f]raud, as defined by § 6-5-101, includes four elements: (1) There must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation; and (4) the plaintiff must be damaged as a proximate result." Cowen v. M.S. Enterprises, Inc., 642 So. 2d 453 (Ala.1994). According to Talb, in order for a plaintiff to *292 prevail against a defendant's motion for directed verdict on a fraud/misrepresentation claim, the plaintiff must present evidence of all four elements.
"Suppression of material facts" is dealt with in § 6-5-102:
It is well settled that:
Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 918 (Ala.1994). Again, according to Talb, in order for a plaintiff to prevail against a defendant's motion for directed verdict on a suppression claim, the plaintiff must present evidence of all four elements.
Bell did not carry the burden of proof necessary to establish a claim of fraudulent misrepresentation. It is not clear, for instance, that Bell relied upon a false representation to his detriment. Had Bell known that certain dealers in the area were being offered the rule of 78 program, what would he have done differently? It appears to be GMAC's prerogative to offer this program to certain dealers of GM's choosing. Even more uncertain is the amount of damage Bell incurred. Assuming that Bell relied on this allegedly misleading statement, Bell has proven no damage to himself or his business as a result of that reliance.
"It is well settled that damage is an essential element of an action for fraud and deceit," Ringer v. First National Bank of Stevenson, 291 Ala. 364, 369, 281 So. 2d 261, 266 (1973), and that "[t]o recover compensatory damages for fraud and deceit, [a] plaintiff must show that he has suffered an actual pecuniary loss as the result of the fraud." Pihakis v. Cottrell, 286 Ala. 579, 586, 243 So. 2d 685, 692 (1971).
There is only one situation where this Court will presume damages for fraud. "Due to the uniqueness of land, damages are presumed for purposes of a cause of action in tort for fraud." Roberts v. Carroll, 377 So. 2d 944, 946 (Ala.1979). Otherwise, the damages element of "[f]raud is never presumed, and the party asserting fraud bears the burden of proving each and every element thereof." Allen v. Gulf Life Insurance Co., 617 So. 2d 664, 666 (Ala.1993) (overruled on other grounds, Boswell v. Liberty Nat'l Life Ins. Co., 643 So. 2d 580 (Ala.1994)); George v. Federal Land Bank of Jackson, 501 So. 2d 432 (Ala.1986) (affirming a summary judgment based upon the conclusion that there was insufficient evidence in the record to support a finding of fraud because the plaintiffs had failed to show how they were injured or damaged); Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985) (judgment based on jury verdict of fraud reversed because the plaintiff had failed to adduce a scintilla of evidence on every element of fraud).
Damage is an essential element of an action for fraud, and a plaintiff must show that he has suffered an actual pecuniary loss as the result of the fraud. If the plaintiff fails to present sufficient evidence of damage, courts must not presume that the plaintiff incurred damage. Instead, the proper coursein response to a defendant's timely motion for a directed verdictis to direct a verdict in favor of the defendant.
The plaintiff did not present so much as a scintilla of evidence of damage in this case, much less sufficient evidence to survive a motion for a directed verdict. The plaintiff did present evidence of the difference between his actual revenue and the amount of revenue he would have received if he had been on the rule of 78 program. The plaintiff alleges that he was defrauded regarding whether all dealers were on the Mod-C program. However, he does not prove that he *293 was entitled to be placed on the rule of 78 program. Bell's lack of knowledge as to whether all dealers were on the Mod-C program does not cause any damage. On the contrary, the evidence shows that GM and GMAC did not tell Bell about that program because they did not intend to approve him for the rule of 78 program.
According to Talb, Lamb, and Allen, this Court cannot presume any elements of fraud. Therefore, this Court cannot determine that, but for the alleged fraud, the plaintiff would have been entitled to be placed on the rule of 78 program. The simple fact that some dealerships were on the rule of 78 program does not mean that Bell was also entitled to be placed on that program. In fact, the record suggests the opposite: the overwhelming majority of the dealerships in the plaintiff's "area" were not on the rule of 78 program, but were on the same plan as the plaintiff.
Perhaps the dealerships that were on the rule of 78 program qualified for that program only by achieving some degree of success that GM and GMAC found to be rationally related to the rule of 78 program. Perhaps that was not the case. Nevertheless, the defendants did not have the burden of proving the rationality of their business. Instead, the burden was on Bell to simply present sufficient evidence that he was entitled to the rule of 78 program.
Bell did not present sufficient evidence and, in fact, did not even present a scintilla of evidenceindicating that he was entitled to the rule of 78 program. The mere testimony as to what revenue Bell would have received if he had been on the rule of 78 program is irrelevant because there was no evidence that Bell was entitled to be on that program. In the absence of such proof, this Court cannot presume that the plaintiff could have been damaged. Talb, Inc. v. Dot Dot Corp., 559 So. 2d 1054 (Ala.1990); Lamb v. Opelika Production Credit Association, 367 So. 2d 957 (Ala.1979); Allen v. Gulf Life Insurance Co., 617 So. 2d 664 (Ala.1993).
Accordingly, I would hold that the trial judge erred in denying the defendants' motions for directed verdicts on the fraud and suppression claims. Therefore, I must respectfully dissent from that portion of the main opinion holding to the contrary.
[1] The plaintiffs' cross appeal, which was filed on December 20, 1995, challenged the application to them of this Court's initial decision in Life Insurance Co. of Georgia v. Johnson, (Ms. 1940357, November 17, 1995), wherein we authorized the State to share in punitive damages awards. However, on April 26, 1996, this Court, on application for rehearing, withdrew its initial opinion in Johnson and held that the State could share in punitive damages awards only in future cases involving the new bifurcated procedure. Because of the prospective nature of Johnson, the issue presented on the cross appeal is moot. See Life Insurance Co. of Georgia v. Johnson, 684 So. 2d 685 (Ala.1996).
[2] GM provided the dealership with "FACTS" reports, comparing this dealership's operations with those of certain other GM dealerships. GM also provided training programs for the dealership's mechanics and sales employees. Field representatives from each of GM's divisions visited the dealership and made certain recommendations. Because Bell is African-American, representatives of GM's Minority Dealer Development Department visited the dealership regularly. This department's purpose was to develop ways to assist minority dealers. GM also provided "PEP" (Profit Enhancement Program) reports, comparing the dealership's operations to those of other dealers nationally that were owned by racial minorities. In 1985, GMAC's control branch manager, Bennett Hall, approved Bell's application for a $350,000 loan to build a new dealership facility. Hall also approved a $150,000 equipment loan for the dealership. GMAC steadily increased the dealership's limit for floor plan financing from $400,000 initially to $2,300,000 by the end of 1989. Bell requested, and received, all six lines of GM vehiclesPontiac, Buick, Cadillac, GMC Truck, Oldsmobile, and Chevrolet. The dealership was only one of a handful in the country allowed to carry all six lines of GM vehicles. Assistant control branch manager Gregory Bemister reviewed the dealership's financial statements on a quarterly basis and talked with Bell regularly. When the dealership's inventory became too large, GM arranged to transfer some of the dealership's vehicles to other dealers. Removing these vehicles from inventory reduced the finance charges that the dealership had to pay GMAC. In addition, under a "supplemental floor plan protection" program, GM paid GMAC part of the finance charges that were owed by the dealership on its vehicles. GMAC also allowed the dealership to participate in a "Wholesale Incentive Plan" that only seven or eight other branch dealers enjoyed. Under that plan, GMAC provided a rebate to the dealership in an amount up to one percent of the dealership's wholesale finance charges. In the early 1990s, when the dealership was getting progressively weaker financially, GM and GMAC arranged financing for sales to the City of Tuskegee; provided the dealership with a special demonstrator program for Alabama State University; bought back parts in an attempt to reduce the dealership's debt; and, by "special initiatives," processed stale claims for warranty work.
[3] We note that the dealership stated on page 134 of its brief that "[i]t is of only passing interest that Mr. Hall also misrepresented to Bell that his dealership chargeback program `was the same as the by-pass dealers' (R. T. 1446-47) during 1990." (Emphasis in original.) However, that portion of the record cited by the dealership does not indicate that Hall made such a representation in 1990. The pertinent portion of Bell's testimony at pages 1446-47 is as follows:
"Q. Mr. Bell, you were asked some questions I believe by Mr. Joseph yesterday about the early or the initial repossession plan that you were under in 1981 I believe it was. Do you remember that?
"A. Yes, sir.
"Q. And he asked you a series of questions about that and your communications with Mr. Hall connected with that. Let me ask you somethingwe can locate the document if necessarydo you recall there being anything on the document itself that had the words `Modification C'?
"A. No, sir.
"Q. Of course, the document will be or is in evidence. Let me ask you to tell the jury, Mr. Bell, whether or not Mr. Hall or Mr. Pratt ever told you that your program was different from the bypass dealers?
"A. Never in my life.
[Footnote cont'd.]
"Q. Did he tell you that your repossession program was the same as the bypass dealers?
"A. I was always told that my program was the same.
"Q. What, if anything, did Mr. Hall tell you about your repossession program as compared to the bypass dealers?
"A. That my program was the same as the bypass dealers."
[4] The dealership argues as follows in its brief:
"For damage calculation purposes, it made absolutely no difference what were `the chargeback terms [for] the by-pass dealers before 1990,' even though appellants pretend to assert otherwise. The focus was not when (or if) the by-pass dealers went on, or they came off of, Modification `C.' The issue was what damage did the program inflict upon Bell Motor Company after it was told it had the same benefits under GMAC's repossession chargeback plan as every other dealership located [within] the Montgomery Control Branch?"
(Emphasis original.)
[5] The dealership argues as follows in its brief:
"[H]ad the term `modification' been used, Mr. Bell would have asked the next logical question: `Modification of what? ` Upon doing so, naturally, he would have learned the true facts."
(Emphasis original.)
[6] We do not mean to suggest that Edrington was, initially, under a legal duty to disclose confidential information to Bell in response to Bell's inquiries concerning the chargeback plan under which the Montgomery bypass dealerships operated. However, because of Edrington's affirmative misrepresentations with respect to the chargeback plan, we conclude that GMAC was estopped to raise confidentiality as a defense to the dealership's suppression claim.
We further note that there is at least a question as to whether GMAC was statutorily prohibited from disclosing to the dealership that any specific dealership in Montgomery was on an unmodified nonrecourse chargeback plan. See § 8-20-4, part of the Dealer Act, which provides:
"Notwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver, prior to the termination, cancellation, or nonrenewal of any dealer agreement or franchise, the following acts or conduct shall constitute unfair and deceptive trade practices:
"....
"(3) For any manufacturer ...
"r. To release to any outside party, except under subpoena, or as otherwise required by law or in an administrative, judicial, or arbitration proceeding, any business, financial, or personal information which may be from time to time provided by the dealer to the manufacturer, without the express written consent of the dealer."
"Manufacturer" is defined in § 8-20-3(8) as "[a]ny person engaged in the manufacturing or assembling of new motor vehicles as a regular business or any person who is controlled by the manufacturer." (Emphasis added.) A corporation is a "person" within the meaning of the Dealer Act. § 8-20-4(12). However, because this issue was not ruled on by the trial court, we do not address whether GM has any "control" over GMAC's financing decisions with respect to GM dealerships that would bring GMAC within the provisions of the Dealer Act.
[7] We note that Bell testified that during "good years" in the mid-1980s when he made "good money," GMAC had bought more than 95% of the retail paper the dealership had sent to it. We also note that the dealership made a profit in 1986 and 1987, two of the years included in Carter's analysis. Regardless of whether Bell intended to include these years in connection with his testimony that GMAC had purchased 95% of the dealership's retail paper, we must, in accordance with our standard of review, view the evidence in the light most favorable to the dealership and accept Carter's figures with respect to 1986 and 1987 as correct.
[8] In fact, one of the primary bases of the dealership's claim was that GMAC's representatives had misrepresented the fact that GMAC employees actually had the discretion to override an unfavorable MAPS score.
[9] Gregory Bemister explained as follows as to how this could occur:
"Q. There's also been some discussion about MAPS odds. Can you tell us what MAPS odds are?
"A. Yes. Odds are the probability that the system calculates that an application or a particular deal will be able to pay through to the end of the contract term.
"Q. Does the deal that the customer receives at the dealership or gets at the dealership have anything to do with odds?
"A. It could be affected by it, yes.
"Q. Would the same customer ever get turned down at one dealership and get approved at another dealership? Could that occur?
"A. Yes, that can happen.
"Q. How can that happen?
"A. Well, again, it would depend upon the information between the two applications. The best example I could give is if somebody went into a dealership that was advertising low down payment, no credit needed. And, if the sales person at the dealership maybe only took the customer's name, address, social security number, and had part of their income that they made, then that could be evaluated under one set of circumstances. The other thing that could affect the first transaction would be the amount of down payment. Maybe that first dealer wouldn't necessarily ask for enough down payment. If that customer then went to another dealership, they may take a more completed application, getting all the customer's credit references, making sure that we have all the customer's income, and they could see that the customer put more money down.
"Q. This morning we used an example about what would occur if a dealer charged $500 more for a car than another dealer, and the dealer who did not charge that excessive amount, that $500, alsothe other one asked for $200 down payment. Would that have any particular odds or the risk part of it?
"A. Sure. It would improve the equity of the deal which would make the deal more favorable."
[10] Program vehicles are essentially late model, low mileage, used vehicles.
[11] The record indicates that GM objected to the involvement of Bob Lee Alphin, a Georgia used car dealer, in the dealership's purchase of program vehicles for direct resale to a rental car company. Bell testified that he thought he was in compliance with the auction rules.
[12] GM states in its brief that it has approximately 9,000 dealerships.
[13] The record indicates that Lowe had also had his auction privileges suspended on a previous occasion for not properly disposing of program vehicles in accordance with the auction rules. | September 20, 1996 |
312ac1ba-aea6-41c7-a941-db8cc7594bcb | Gober v. Stubbs | 682 So. 2d 430 | 1951374 | Alabama | Alabama Supreme Court | 682 So. 2d 430 (1996)
Henry Wade GOBER
v.
Jimmy STUBBS, Judge of Probate of Elmore County, Alabama.
1951374.
Supreme Court of Alabama.
September 13, 1996.
*431 Douglas Corretti and Charles Cleveland of Corretti, Newsom, Cleveland, Hawkins & Cleveland, Birmingham, for Appellant.
John E. Enslen of Enslen, Johnston & Pinkston, L.L.C., Wetumpka, for Appellee.
G. William Noble, Gardendale, for Amici Curiae Cities of Montgomery, Prattville, Millbrook and Wetumpka, Town of Coosada and Montgomery County, in support of Appellee.
HOUSTON, Justice.
Henry Wade Gober, pursuant to Ala.Code 1975, § 12-22-6, appeals from the order of the Circuit Court of Elmore County denying his petition for the writ of mandamus. In his petition for the writ of mandamus, Gober requested that the circuit court order the Elmore County probate judge to set aside his order granting Elmore County's application to condemn a portion of Gober's property; he based his petition on the grounds that the proposed condemnation was not authorized by Alabama law and that it violated the Alabama Constitution of 1901, Article I, § 23, and Article IV, § 94, as amended by Amendment 112.
This controversy has its origin in two contemporary dilemmas facing the people of Alabama: a growing need for an improved and expanded transportation infrastructure and the ever-present lack of sufficient governmental funds to meet that need while at the same time meeting other public needs. In recent years, tremendous population growth in the Millbrook-Coosada area of Elmore County has created an urgent need for an additional bridge across the Alabama River in order to accommodate the thousands of persons from that area who daily commute to and from their work in the City of Montgomery; however, neither the State of Alabama nor Elmore County or Montgomery County currently has the financial resources needed to build such a bridge. In order to solve this seemingly intractable problem, the governing bodies of Elmore County and Montgomery County agreed to study the feasibility of permitting a private corporation to build the needed additional Alabama River bridge and *432 to operate it as a for-profit toll bridge. Eventually, Sea Star, Inc., an Alabama corporation, owned by Jim Allen, an Elmore County businessman already experienced in successfully operating toll bridges, was chosen to construct and operate the bridge.
The agreement entered into between Sea Star, Inc., Elmore County, and Montgomery County states that for its part Sea Star agreed as follows:
In exchange, Elmore County and Montgomery County agreed as follows:
It is undisputed that with the exception of the Gober property all the rights-of-way necessary to complete the project were obtained without the necessity of resorting to involuntary condemnation. In fact, some landowners actually donated tracts of their land in support of the project. Furthermore, the record shows that the project has been approved by all necessary governmental authorities, including the Army Corps of Engineers. Gober owns the last needed tract of land on the Elmore County side of the Alabama River.[1]
Gober's appeal raises three issues, each of which will be considered in turn:
The concept of respect for private property is part of the very fabric of a free and *433 democratic society. The importance of the right of private ownership of property is evident in the organic law of our nation and our state. See, e.g., Amendment V ("No person shall be ... deprived of life, liberty, or property, without due process of law") and Amendment XIV ("nor shall any state deprive any person of life, liberty, or property, without due process of law"), Constitution of the United States. See also Article I, § 6 ("he shall not ... be deprived of life, liberty, or property, except by due process of law"); and Article I, § 35 ("the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property"), Constitution of Alabama of 1901 (emphasis added). The framers of both the Federal Constitution and the Alabama Constitution clearly sought to create a governmental system that not only respected, but also affirmatively protected, the property rights of individuals. See Magna, Inc. v. Catranis, 512 So. 2d 912 (Ala.1987).
Like most rights though, the right to private property is not limitless.[2] In one of Alabama's earliest eminent domain cases, Chief Justice Lipscomb wrote:
Aldridge v. Tuscumbia, C. & D.R.R., 2 Stew. & P. 199, 204 (Ala.1832). In the United States, the law of eminent domain is the product of the perpetual struggle between the competing concepts of individual right and public good. In Article I, § 23, of the Alabama Constitution, an almost perfect balance between these oftentimes opposing interests was struck:
The power of eminent domain does not originate in Article I, § 23. Instead, it is a power inherent in every sovereign state. Section 23 merely places certain limits on the exercise of the power of eminent domain. This Court stated in Steele v. County Commissioners, 83 Ala. 304, 305, 3 So. 761, 762 (1887):
In order for an exercise of eminent domain to be valid under § 23, two requirements must be met. See Johnston v. Alabama Public Service Commission, 287 Ala. 417, 419, 252 So. 2d 75, 76 (1971). First, the property must be taken for a public use and, with one exception inapplicable here, it cannot be taken for the private use of individuals or corporations.[4] This first restriction is no more than a restatement of a requirement inherent in a sovereign's very right to exercise eminent domain. See Steele, 83 Ala. at 305, 3 So. at 762. Second, "just compensation [must be paid] for any private property taken." Johnston, 287 Ala. at 419, 252 So. 2d at 76.[5]
The basis of Gober's claim that Elmore County's proposed condemnation of a portion of his property violates § 23 is his assertion that the taking is not for a public use. Gober asserts that Elmore County is seeking to impermissibly condemn his property for private use, because the county intends to allow Sea Star, a private corporation, to construct a bridge abutment for its privately owned and operated toll bridge on a portion of the condemned property and intends to use the rest of the condemned property to build a road connecting to Sea Star's toll bridge. Gober's assertion is incorrect.
It is well settled in Alabama that the determination of whether a use is public or private is dependent upon the nature of the use, not the manner in which the use is accomplished. See Columbus Waterworks Co. v. Long, 121 Ala. 245, 247-48, 25 So. 702, 703 (1898):
See also Parrish v. City of Bayou La Batre, 581 So. 2d 1101 (Ala.Civ.App.1990) (holding that an agreement to build a new sewer line entered into between the city and the corporations to be benefitted by the new sewer line did not constitute a private use even though the benefitted corporations agreed to finance and construct the line). In Aldridge, 2 Stew. & P. at 203, this Court eloquently and succinctly defined a "public use," holding that "[w]hatever is beneficially employed for the community, is of public use." Furthermore, our case law establishes that:
Florence v. Williams, 439 So. 2d 83, 89 (Ala. 1983) (quoting Redevelopment Agency of City & County of San Francisco v. Hayes, 122 Cal. App. 2d 777, 804, 266 P.2d 105, 122, cert. denied, 348 U.S. 897, 75 S. Ct. 214, 99 L. Ed. 705 (1954)).
Applying these principles to this case, we must conclude that the purpose for Elmore County's application to condemn the land in question is a public use, that use being the creation of an indisputably much needed alternative route between the Millbrook-Coosada area of Elmore County and the City of Montgomery. The fact that a privately owned and operated toll bridge will be part of that new public roadway does not change the nature of the use in question. Nor does the fact that Sea Star will be allowed to build a bridge abutment upon a portion of the condemned property change the nature of the taking from a public use to an impermissible private use. See Parrish v. City of Bayou La Batre, 581 So. 2d 1101 (Ala.Civ.App.1990); see also Blankenship v. City of Decatur, 269 Ala. 670, 115 So. 2d 459 (1959) (which went as far as to hold that the taking of the petitioner's land pursuant to an urban redevelopment plan that provided that the condemned property would be later resold to private individuals and corporations after it had been cleared of dilapidated buildings constituted a taking for a public use and therefore did not violate § 23).
Our conclusion is supported not only by the application of Alabama case law, but also by the leading treatise in this area of the law, Sackman and Rohan, Nichols' The Law of Eminent Domain (3d ed. 1990):
Id. at § 7.08[1], p. 7-68. (Emphasis added.)
Gober also contends that there is no statutory authorization for Elmore County to condemn his land for the purpose of building a connecting road and bridge abutment for a privately owned and operated toll bridge that is intended for use by the public. However, Ala.Code 1975, § 11-80-1, provides:
(Emphasis added.)
Having determined in Part I of this opinion that Elmore County's condemnation of Gober's land was for a "public use," we find no merit in this contention.
Gober asserts that the agreement entered into by Sea Star, Inc., Elmore County, and Montgomery County violates Article IV, § 94, as amended by Amendment 112, of the Constitution of Alabama of 1901 (hereinafter referred to as "§ 94"). He contends that Elmore County is impermissibly "lend[ing] its credit, or ... grant[ing] public money" (§ 94) to Sea Star. This contention is premised upon two arguments. First, Gober argues that Elmore County's grant of a right-of-way or easement over the property in question to allow Sea Star access to the bridge site and to allow Sea Star to build a bridge abutment on a portion of the condemned property violates § 94. Second, *436 Gober argues that the expenditure of public funds by both Elmore County and Montgomery County to build and maintain a roadway connecting to Sea Star's toll bridge furthers the interests of Sea Star and therefore violates § 94.
The pertinent portion of § 94 states:
In Mobile Wrecker Owners Ass'n, Inc. v. City of Mobile, 461 So. 2d 1303, 1306 (Ala. 1984), this Court stated:
The mere fact that a county enters into a mutually beneficial agreement with a private individual or corporation does not violate Article IV, § 94 of our constitution. To rule that it does would arbitrarily prevent cities and counties from attempting to find innovative solutions to the problems they face, by foreclosing any opportunity for cooperation between the public and private sectors for the public good. Recognizing that this result was not intended by the framers of our constitution, this Court has repeatedly stated:
Florence v. Williams, 439 So. 2d 83, 91 (Ala. 1983) (quoting Rogers v. City of Mobile, 277 Ala. 261, 278, 169 So. 2d 282, 288 (1964)). All the benefits flowing to Sea Star arise from a mutually beneficial agreement between Sea Star and the counties. Under the contract, no governmental money at all will be spent in building the privately owned toll bridge.[6] Sea Star, for its part, has agreed not only to pay all the expenses necessary for the construction of the toll bridge and bridge abutments, but also to be responsible for all future maintenance costs associated with the toll bridge. In exchange, the counties have agreed to allow Sea Star an easement to build bridge abutments on a portion of the land in question and have agreed to grant Sea Star an easement or right-of-way across the condemned land in order to fulfill its contractual obligations.[7]
In considering, for purposes of § 94 analysis, the question whether "a contract of a public body is an ordinary commercial contract, with benefits flowing to both parties and a consideration on both sides," Florence v. Williams, 439 So. 2d at 91, this Court will not "presume bad faith nor will we inquire into the adequacy of the consideration." Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629 (1952) (refusing to question the motives behind a contract, or the adequacy of the consideration of that contract, between the City of Andalusia and a private manufacturer in which the city agreed to lease a portion of its industrial park to the manufacturer on very favorable terms). We must *437 therefore conclude that the easement rights granted to Sea Star, Inc., pursuant to the agreement between Sea Star and the counties did not constitute an impermissible "lend[ing of Elmore County's] ... credit, or... grant[ing] public money" to Sea Star (§ 94).
Gober's reliance upon Griffin v. Jeffers, 221 Ala. 649, 130 So. 190 (1930), is misplaced. The facts underlying the present controversy are very different from the facts this Court faced in Griffin. The facts of that case are as follows:
Griffin, 221 Ala. at 650, 130 So. at 190-91. Griffin does not stand for the proposition that all agreements between counties and private toll bridge operators violate § 94. Instead, Griffin merely holds that a county or municipality may not enter into a contract guaranteeing that the operation of a privately owned toll bridge will be profitable. While the contract in question in Griffin was, in the words of this Court, "clearly a loan of [Etowah County's] credit to aid [the toll bridge owner] and his associates to construct a privately owned toll bridge," Griffin, 221 Ala. at 651, 130 So. at 192, the agreement in question in this case clearly is not.
Gober's second argument is premised upon his contention that Elmore County and Montgomery County have entered into an agreement with the intention of spending millions of dollars to build roads connecting with Sea Star's toll bridge, with the primary object being to benefit Sea Star. If this allegation were correct, there could be a potential violation of § 94. Elmore County and Montgomery County are not building roads with the primary intention of benefiting Sea Star, Inc. Instead, they are building, for the benefit of the commuting public, a roadway between the Millbrook-Coosada area and the City of Montgomery that happens to have a private toll bridge as a part of it. The fact that Sea Star is incidentally benefiting from the counties' efforts to satisfy a public necessity does not violate § 94.
For the foregoing reasons, the Elmore Circuit Court's order denying Henry Wade Gober's petition for a writ of mandamus is due to be affirmed.
AFFIRMED.
*438 HOOPER, C.J., and MADDOX, SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.
[1] Almost all of the Gober property that Elmore County seeks to condemn will be used to complete the last leg of the county road connecting Millbrook with the new bridge. The record does show that the last 30 to 40 feet of the tract leading to the edge of the Alabama River will be used to construct the bridge abutment for the toll bridge. Title to the entire tract, including the land on which the bridge abutment is to be built, however, will remain with Elmore County.
[2] In Aldridge v. Tuscumbia, C. & D.R.R., 2 Stew. & P. 199, 204 (Ala.1832), this Court observed:
"The sovereign authority is frequently exerted over personal rights and private property. It is done in the enforcement of all quarantine regulationsfor the prevention of monopolies; and it is necessary, to prevent a correspondence with the public enemy. It is exercised by governments, as well in peace, as amidst the tumult of warin time of peace, in opening harbors, dock yards, and channels of peaceful commerce, productive of the general prosperity of the countryin time of war, private property is more frequently subjected to the public usefor provisioning armies, supplying the means of transportation, and in the erection of fortifications. And, sometimes, it has been considered necessary to destroy every article of subsistance [sic], and every thing that could, in any way, be subservient to the support and comfort of an invading army, for the purpose of arresting its progress. In such cases, infinite distress is produced by the destruction of private property; but the government acts on the principle of a right to sacrifice a part of the good of the many."
[3] This Court in Steele interpreted and applied Article I, § 24, of the 1875 Constitution of Alabama, the language of which is identical to Article I, § 23, of Alabama's current 1901 constitution.
[4] Unlike a partnership, "[a] corporation can be created only by or under authority from the state." William L. Clark, Jr., Clark on Corporations, 2d ed., p. 10 (1907). Because of this, the framers of the Constitution of Alabama of 1875 considered corporations to be quasi-governmental entities, rather than strictly private entities. This confusion over the legal nature of corporations caused the drafters of § 24 of the 1875 Constitution (which is identical to § 23 of the Constitution of Alabama of 1901) to add the following language to the beginning of the eminent domain provision found in the Constitution of Alabama of 1868:
"[T]he exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected...."
The phrase in question in the present appeal "nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner" reflects this same confusion as to the legal nature of corporations. In order to make it perfectly clear that private use by a corporation is to be considered "private use" within the meaning of § 24, the drafters of the 1875 constitution included the "for the use of corporations" language in § 24. That language did not, as the appellant argues, create a third restriction on the exercise of the power of eminent domain.
[5] Before the establishment of the post-Revolutionary War governments of the various United States, just compensation for property taken pursuant to the power of eminent domain had never been constitutionally guaranteed. In Aldridge v. Tuscumbia, C. & D.R.R., 2 Stew. & P. 199, 205 (Ala.1832), this Court stated:
"The sovereign power with us, has imposed a limitation on itself, unknown to other sovereignties, except those of the American Union. It is declared [in Alabama's original 1819 Constitution], that, this right of using private property for public use, shall not be exercised, `without a just and fair compensation;'...."
[6] If the counties were financing the construction of the toll bridge, the project's constitutional validity would be in question. See Opinion of the Justices No. 215, 294 Ala. 555, 567, 319 So. 2d 682, 694 (1975), in which this Court held that a bill that allowed municipalities to enter into joint projects with private electrical companies did not violate Article IV, § 94, of our constitution. In that opinion we stated:
"The bill specifically provides for the cost of such Projects to be financed solely out of revenues derived from the Projects. No part of the Project costs are to be a charge on the general credit or tax revenues of any municipality. For these reasons § 94 is not violated."
Id. (citing Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629 (1952)).
[7] The right-of-way granted to Sea Star is not exclusive. The roads built will be public roads. Arguably, it was not necessary for Sea Star to be given a right-of-way at all. | September 13, 1996 |
d33cb776-0026-4d6f-980b-97589ec45754 | Bennett v. Brewer | 682 So. 2d 448 | 1950223 | Alabama | Alabama Supreme Court | 682 So. 2d 448 (1996)
Austen L. BENNETT III, M.D., and Cardio-Thoracic Surgeons, P.C.
v.
Ronald C. BREWER, Administrator of the Estate of Walter D. Brewer, deceased.
1950223.
Supreme Court of Alabama.
September 20, 1996.
*449 Walter W. Bates and Scott M. Salter of Starnes & Atchison, Birmingham, for Appellants.
Frank S. Teel of Teel & Teel, P.C., Rockford, for Appellee.
ALMON, Justice.
Austen L. Bennett III, M.D. and Cardio-Thoracic Surgeons, P.C., appeal from the denial of their motion for a new trial. On September 14, 1993, Walter D. Brewer filed an action in Jefferson County against Dr. Bennett and Cardio-Thoracic Surgeons, alleging that Dr. Bennett had negligently performed a heart bypass operation on Brewer.[1] On December 6, 1993, Brewer died, from causes unrelated to his heart bypass surgery, and his son, Ronald C. Brewer, as administrator of his father's estate, was substituted as the plaintiff in this proceeding. See Rule 25, Ala.R.Civ.P.
The case proceeded to trial, and the jury returned a $250,000 verdict against Dr. Bennett and Cardio-Thoracic Surgeons. The defendants filed a motion for a JNOV, or, in the alternative a new trial, alleging, among other things, that the plaintiff's counsel had improperly injected the wealth of Dr. Bennett into the closing arguments. The court denied the motion. Dr. Bennett and Cardio-Thoracic Surgeons have raised eight issues on appeal; however, because the first issue requires a reversal of the judgment, we pretermit any discussion of the remaining issues.
Specific facts regarding the alleged malpractice are unnecessary for a resolution of the issue; thus, we include only a brief summary of the facts. At the conclusion of Mr. Brewer's triple bypass surgery, Dr. Bennett placed four chest tubes into the chest cavity in order to drain any blood that might accumulate in the chest cavity after the operation. While placing one of the drainage tubes, Dr. Bennett perforated Mr. Brewer's transverse colon. As a result of this perforation, Mr. Brewer suffered complications that lengthened his hospital stay and increased his medical expenses. Specifically, Mr. Brewer suffered peritonitis and subsequently had to have a colostomy.
Dr. Bennett and Cardio-Thoracic Surgeons contend that on four occasions Mr. Brewer's counsel improperly injected the wealth of Dr. Bennett into his closing argument. It is well settled that it "is highly prejudicial to a defendant for the jury to be improperly informed as to wealth of the defendant or poverty of the plaintiff." Liberty National Life Insurance Co. v. Kendrick, 282 Ala. 227, 230, 210 So. 2d 701, 703 (1968). The defendants claim that the following statements made by Mr. Brewer's counsel during his closing argument were so prejudicial and highly improper that a reversal is due:
At a later point in his argument, Mr. Teel made the following comments:
Shortly thereafter, Mr. Teel made the following statement:
The defendants further contend that the actions by the court did not, and could not, eradicate the effect of the comments from the minds of the jury. This Court has held that the standard of review regarding the propriety of a closing argument is as follows:
Otis Elevator Co. v. Stallworth, 474 So. 2d 82, 84 (Ala.1985), quoting Estis Trucking Co. v. Hammond, 387 So. 2d 768, 771-72 (Ala.1980) (emphasis in Estis). This Court also stated in Otis Elevator that "[i]n determining whether counsel's argument is improper, this Court must consider the evidence, the argument itself, the prejudicial effect of that argument and corrective actions of the court." 474 So. 2d at 83, citing Estis Trucking Co. v. Hammond, supra.
In Otis Elevator this Court reversed a judgment based on a verdict for the plaintiff, stating that the following remarks were improper and highly prejudicial:
474 So. 2d at 83. The Court reasoned that the language used by the plaintiff's attorney implied that if Otis could afford to hire an expert witness from New York then it could afford to pay a judgment. 474 So. 2d 82, 84.
In Estis Trucking Co., supra, this Court reversed a judgment on a verdict in favor of the plaintiff, in part because counsel for the plaintiff made several statements in his closing arguments regarding the wealth of the defendants. The first statement was that the defendants "could have afforded" a better photograph of the accident scene. 387 So. 2d at 770. Later in the argument, plaintiff's counsel stated that "Mr. Taylor [defense counsel] stated to you that he is from Birmingham, but he's not shocked about this $500,000.00. Ladies and gentlemen, he's not shocked. He deals in these figures every day. He tries lawsuits all over the State of Alabama." 387 So. 2d at 771. In both instances, defense counsel objected and moved for a mistrial and plaintiff's counsel withdrew the statements. The court overruled the motions for a mistrial and, after the first objectionable statements, instructed the jury not to consider the statements. 387 So. 2d at 770-71. This Court held "that the argument was improper and highly prejudicial and its influence was not eradicated from the mind of the jury by the admonition of the trial court." 387 So. 2d at 772.
Moreover, in Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So. 2d 725 (1972), the Court reversed a judgment on a verdict for a defendant because defense counsel had made statements in his closing argument regarding the wealth of the plaintiff. The statements made in Allison were very similar to those made by counsel in the instant case. In closing arguments, defense counsel stated, "It's a great thing, folks, to be a very wealthy man and to be able to go out here and hire two law firms with four lawyers." 289 Ala. at 446, 268 So. 2d at 727. The trial court sustained an objection to this statement and instructed the jury at that point, and in its general instructions, that arguments of counsel were not evidence and should not be considered. Id. However, the court did not instruct the jury that such arguments were improper, even though plaintiff's counsel had objected on that basis and had requested a curative instruction to that effect. This Court specifically stated that "the [trial] court at no time instructed the jury that the argument ... was improper, but after sustaining the objection merely told the jury that argument of counsel was not evidence in the case." Allison, 289 Ala. at 448, 268 So. 2d at 729. This Court held that the trial court's admonition at the time of the objection, along with its general instructions that remarks of counsel were not evidence, were not sufficient to eradicate the influence of the statements from the minds of the jurors. Id. See also, Stallworth v. Holt, 534 So. 2d 1063 (Ala.1988), and Pryor v. Limestone County, 225 Ala. 540, 144 So. 18 (1932).
In the instant case the court overruled defense counsel's objection to the "$600,000" statement, but sustained the other objections and instructed the jury to decide the case based on the evidence and not on arguments of counsel. The court never instructed the jury that the comments in question were improper. Thus, this Court must consider whether the "$600,000" statement might have influenced the jury and whether the influence of the other statements was eradicable from the minds of the jurors.
After carefully "consider[ing] the evidence, the argument itself, the prejudicial effect of the argument, and the corrective actions of the court," we conclude that the statements made by Mr. Brewer's counsel were improper and prejudicial. Otis Elevator, 474 So. 2d at 83. Furthermore, we conclude that the cumulative effect of these statements was such that the trial court's corrective action could not eradicate their influence from the minds of the jurors. The statements clearly implied that Dr. Bennett was a wealthy heart surgeon, that he had a "great education," and that he could afford to live in Mountain Brook, while Mr. Brewer drove a dump truck and lived in a mobile home. Such comments are clearly improper and are intended to prejudice a jury against a wealthy defendant. They have no place in our judicial system, *452 which seeks to ensure fairness and impartiality.
Accordingly, the court erred in denying the defendants' motion for a new trial. The judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and KENNEDY and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
If any one of the four references to wealth had been the only reference to Dr. Bennett's wealth made during closing argument, I would have declined to hold that the trial court abused its discretion in denying a new trial. See L.W. Johnson & Associates v. Rivers Construction Co., 532 So. 2d 618, 624-25 (Ala.1995). Control of the argument of counsel is largely within the discretion of the trial judge, who can observe the demeanor of counsel, hear and consider a remark in the context of the whole argument, and witness the effect upon the jury. We reverse only when there is an abuse of discretion that results in substantial prejudice. The trial judge is better able than we to determine whether a remark prejudiced the jury. However, there were four improper references to the wealth of the defendant doctor that he earned perhaps $600,000 a year, that he lived in Mountain Brook, that he had achieved a great education and made tremendous money, and that he drove a Mercedes-Benz automobile. I am persuaded that permitting the plaintiff's counsel to continue this line of argument was an abuse of discretion that prejudiced Dr. Bennett.
[1] Cardio-Thoracic Surgeons is a professional corporation of which Dr. Bennett is a member and through which he practices medicine. Brewer made a claim against Baptist Medical Center in Birmingham, the hospital where the operation took place. The circuit court entered a summary judgment in favor of the hospital, and Brewer did not appeal from that judgment. | September 20, 1996 |
00cf0d1d-592a-46c7-ae86-a8c4c6f3ed52 | Ex Parte Windsor | 683 So. 2d 1042 | 1931643 | Alabama | Alabama Supreme Court | 683 So. 2d 1042 (1996)
Ex parte Harvey Lee WINDSOR.
(Re Harvey Lee Windsor v. State).
1931643.
Supreme Court of Alabama.
August 23, 1996.
Rehearing Denied October 18, 1996.
*1044 Kathryn V. Stanley, Montgomery, Hugh Holladay, Pell City, and Ray Lowery, Pell City, for Petitioner.
Jeff Sessions, Atty. Gen., and Gilda Branch Williams, Deputy Atty. Gen., for Respondent.
COOK, Justice.
Harvey Lee Windsor was convicted on June 12, 1992, of the capital murder of Rayford Howard. The murder occurred during the course of a robbery of a convenience store. Following a sentencing hearing, the jury unanimously recommended that Windsor be sentenced to death. The trial court accepted the recommendation. Initially, the Court of Criminal Appeals reversed the conviction and remanded the case for a new trial Windsor v. State, 683 So. 2d 1013 (Ala.Cr. App.1993); however, this Court granted the State's petition for the writ of certiorari and reversed the judgment of the Court of Criminal Appeals. See Windsor v. State, 683 So. 2d 1021 (Ala.1994). Thereafter, the Court of Criminal Appeals affirmed Windsor's conviction. See Ex parte Windsor, 683 So. 2d 1027 (Ala.Cr.App.1994). We have now granted Windsor's petition for certiorari review. For the following reasons, we affirm the judgment of the Court of Criminal Appeals.
At trial, the State offered evidence that Harvey Lee Windsor and an accomplice, Colon Lavon Guthrie, robbed two convenience stores. The owner of each store was fatally shot. This appeal addresses Windsor's conviction for the capital murder of Rayford Howard, who was killed in the first of those two robberies. The statement of facts set out by the Court of Criminal Appeals in its June 17, 1994, opinion included the following:
683 So. 2d at 1030.
Windsor argues that the indictment charging him with capital murder was fatally defective. We hereby adopt the reasoning of the Court of Criminal Appeals in its June 17, 1994, opinion, in holding that the indictment was not constitutionally vague or fatally defective. That court stated:
683 So. 2d at 1032. See also Acres v. State, 548 So. 2d 459, 462-64 (Ala.Cr.App.1987).
Windsor contends that the trial court should have granted his motion for a change of venue and that its failure to do so constituted reversible error. We disagree.
Buskey v. State, 650 So. 2d 605, 609-10 (Ala. Cr.App.1994). The trial judge questioned the veniremembers regarding their knowledge of the facts of this case. The lack of response he received when he asked which members of the venire were familiar with the case supports his denial of the motion for a change of venue. There was no abuse of discretion.
Windsor contends that the trial court erred in refusing to grant him a continuance on the date of trial. The record indicates that the defendant was represented by two attorneys, Mr. Lowery and Mr. Holladay. On the day of trial, the defense sought *1047 to obtain a continuance when Mr. Doyle, of the Capital Representation Resource Center, agreed to assist in defending Windsor if a continuance could be obtained. The continuance was sought to allow Mr. Doyle time to prepare for the trial. Upon questioning by the judge, Mr. Doyle indicated that he had not filed a notice of appearance earlier because he had thought a plea agreement had been reached. The following occurred:
R.T. at 37-38. Whether to grant or to deny a motion for a continuance rests within the sound discretion of the trial judge. See Arnold v. State, 601 So. 2d 145, 156 (Ala.Cr.App. 1992). Windsor was represented by two attorneys. The trial judge did not abuse his discretion by refusing on the day of trial to grant a continuance in order for an additional attorney to join in Windsor's defense.
Windsor contends that the trial court erred in refusing to excuse a potential juror for cause, on the basis that she had expressed a concern regarding crime and because she knew the assistant district attorney, Lamar Williamson. We have written:
Knop v. McCain, 561 So. 2d 229, 232 (Ala. 1989). See also Jenkins v. State, 627 So. 2d 1034, 1043 (Ala.Cr.App.1992). The potential juror of whom Windsor complains was questioned as follows:
On voir dire, Juror B. stated that she felt that she could listen to the evidence and return an impartial verdict. The trial court was in the best position to determine whether she should be stricken for cause. "A trial judge's ruling on a challenge for cause is accorded great weight and will not be disturbed on appeal unless it is clearly erroneous and represents an abuse of discretion." Ex parte Taylor, 666 So. 2d 73, 82 (Ala.1995), citing Morrison v. State, 601 So. 2d 165 (Ala. Cr.App.1992), and Hunter v. State, 585 So. 2d 220 (Ala.Cr.App.1991). Considering the evidence pertinent to the question, we conclude that the failure to grant Windsor's challenge for cause was not clearly erroneous.
Windsor next argues that the trial court erred in refusing to hold that the State had improperly used 9 of its 17 strikes to remove women from the jury venire. After the trial in this case, the United States Supreme Court, in J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), extended the principle of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to apply to gender-based strikes. Since J.E.B., several cases have been remanded for Batson-type hearings pursuant to allegations that the State used its strikes in a discriminatory way against females on the jury venire. See Hemphill v. State, 669 So. 2d 1020 (Ala.Cr.App.1995); Roy v. State, 680 So. 2d 935 (Ala.Cr.App.1995); Allen v. State, 659 So. 2d 135 (Ala.Cr.App. 1994); Morris v. City of Dothan, 659 So. 2d 979 (Ala.Cr.App.1994); Talley v. State, 669 So. 2d 1006 (Ala.Cr.App.1994).
The trial court anticipated that gender-based strikes would one day be subject to scrutiny. In determining that the defendant had not made a prima facie case of discrimination based on gender, the court stated:
R.T. at 290-92. "A circuit court's ruling on a Batson objection is entitled to great deference, and we will reverse a circuit court's Batson findings only if they are clearly erroneous. Branch, 526 So. 2d at 625-26." Ex parte Thomas, 659 So. 2d 3, 8 (Ala.1994). In Thomas, this Court disapproved of determining whether a prima facie case was made by comparing statistics on the number of blacks on a jury to the number of blacks on the venire. We also stated:
Ex parte Thomas, 659 So. 2d at 8. In determining that no prima facie case was made of gender-based discrimination in this case, the trial court considered, in addition to statistics, whether the defendant had proven a pattern of strikes that suggested discrimination. We hold, under the circumstances of this case, that an inference of discrimination was not established where 9 of 17 peremptory strikes were used to remove females from the jury venire. The trial court's finding that the defendant made no prima facie case of gender-based discrimination was not clearly erroneous.
Windsor also contends that the State discriminatorily struck 2 of 4 African-Americans from the jury venire. The remaining two African-Americans served on the jury. The following occurred:
R.T. at 287-90. Based on a review of the record, we conclude that the reasons given by the prosecutor were race-neutral and that the striking of the two African-Americans from the jury did not violate Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Ex parte Branch, 526 So. 2d 609 (Ala.1987); or Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
Windsor contends that the in-court identifications of him by Tommy Pepper and Sammie Sue Osborne should not have been allowed because, he argues, those witnesses had previously been exposed to impermissibly suggestive photographs. (He makes a similar argument regarding Bobbie Sue Osborne. However, Bobbie Sue Osborne made no in-court identification; therefore, any allegation of error in this regard is misplaced.) In considering whether the in-court identifications in this case should have been excluded, we note:
Tommy Pepper identified the defendant Windsor in a photographic lineup and then identified him in the courtroom as the man he had seen running from his father's Lawrence County store on the night of his father's murder. Windsor contends that because Pepper had told an officer he had seen Windsor's picture in the newspaper before seeing the photographic lineup, his identification of Windsor in that lineup, as well as his in-court identification of Windsor, was, therefore, tainted. The trial court disagreed, stating:
R.T. at 728. The trial court found that Pepper's in-court identification was independent of his identification of the defendant from the photographic lineup and that the photographic lineup was not unduly suggestive. This finding is supported by Pepper's testimony that, although he did not recall telling anyone that he had seen the defendant's picture in the paper before identifying the defendant in the photographic lineup, he got a good look at the defendant on the evening of the crime and his identification of him was independent of the photographs. The trial court did not err in allowing Pepper to identify the defendant or in admitting evidence of the out-of-court identification.
Sammie Sue Osborne testified that she had seen Colon Lavon Guthrie and a friend of Guthrie's, whom Guthrie called "Harvey,"[1] at her home on February 25, 1988. She testified that on that occasion Windsor sat across from her at the kitchen table. Like Pepper, she also testified that her in-court identification was based on an independent recollection; specifically that her independent recollection was based on the defendant's visit to her home. Under the facts, we conclude that the identification was reliable, and we note that the record contains no evidence suggesting misidentification.
Windsor argues that the "be on the lookout" bulletin ("BOLO") issued by law enforcement officials to officers in North Alabama and Tennessee was not based on an "articulable and reasonable suspicion" and that, therefore, his arrest, which occurred pursuant to that bulletin, was illegal. Thus, he argues, Randall Pepper's pistol, the sawed-off shotgun, and other evidence recovered from the car should not have been admitted into evidence because, he argues, they were fruits of an illegal search. The BOLO, asking officers to be on the lookout for men resembling the bulletin description, contained a photograph of Windsor and *1052 Guthrie and described the vehicle in which they were thought to be traveling. The BOLO alerted the Tennessee police officer who spotted the two men asleep in a car matching the description given in the bulletin, at a rest area on or about March 6, 1988. The car was backed into the parking space, with the front tires sharply turned toward the exit ramp of the rest area. One of the occupants of the car was wearing a dark-colored ball cap, as described in the bulletin. The officer called for reinforcements. Windsor and Guthrie were thereafter arrested and charged with the murder of Rayford Howard.
Windsor contends that the admission of the items recovered from the car into evidence was improper because, he argues, the Tennessee officer did not have probable cause to arrest him. The State, on the other hand, argues that the bulletin issued by Alabama officials was based on a warrant and that the Tennessee officer had a right to rely on that bulletin.
United States v. Hensley, 469 U.S. 221, 232, 105 S. Ct. 675, 682, 83 L. Ed. 2d 604 (1985). The evidence offered at trial indicated that a black Ford Mustang automobile with the word "Boss" on the side was reported as being driven erratically in St. Clair County on the day Rayford Howard was murdered. The tag number of that vehicle was reported to the police. That same car was seen later that day in Marshall County and at Tommy's Store in Lawrence County. Sammie Sue Osborne identified Windsor as having visited her house on the date of the murder. He was with Guthrie, and the two men were in the Mustang automobile with the word "Boss" written on it. Windsor's uncle testified that the tag bearing the number reported to the police had been on one of his cars immediately before he had a visit from Windsor. Shortly after Windsor's visit, the uncle noted that the same tag was no longer on his car.
We have reviewed the record in this case and we conclude that the events leading up to the arrest of Windsor, as evidenced by the testimony of the witnesses at trial, provided probable cause for the officer to connect Windsor and Guthrie with the robbery/murder of Rayford Howard. The BOLO identified the men by photograph and described the car in which they were traveling. The officer making the arrest did rely on the information in the BOLO in arresting Windsor and Guthrie. The items recovered from the car were not discovered as the result of an illegal arrest; therefore, they were properly admitted into evidence.
Windsor argues that the trial court erred in allowing the State to offer evidence that Windsor participated in the robbery and murder of Randall Earl Pepper, which occurred on the same day as the robbery and murder of Rayford Howard. The Court of Criminal Appeals addressed this issue as follows in its June 17, 1994, opinion:
"Rowell v. State, 570 So. 2d 848, 852 (Ala. Cr.App.1990).
683 So. 2d at 1035. We agree with the analysis of the evidence by the Court of Criminal Appeals. The robbery and murder of Rayford Howard and the robbery and murder of Randall Earl Pepper occurred only hours apart, on the same day. Both victims were convenience store owners, and the crimes were factually similar. Therefore, the trial court did not err in admitting evidence regarding Windsor's participation in the robbery and murder of Randall Earl Pepper.
Windsor contends that the trial court erred in allowing Bobbie Sue Osborne and Sammie Sue Osborne to testify that they heard Colon Lavon Guthrie refer to his companion as "Harvey" when the two men visited Bobbie Sue's house and when they visited Sammie Sue's house. The record indicates that any error was not objected to during the defendant's trial. The Court of Criminal Appeals, reviewing this issue in accordance with the plain error rule, see Rule 45A, Ala. R.App. P., found no error. That court, in its June 17, 1994, opinion, quoted C. Gamble, McElroy's Alabama Evidence:
683 So. 2d at 1034. We note the following statements from the Court of Criminal Appeals:
Ferguson v. State, 401 So. 2d 204, 207-08 (Ala.Cr.App.1981), quoting Abercrombie v. State, 382 So. 2d 614 (Ala.Cr.App.1980). The testimony of Bobbie Sue Osborne and Sammie Sue Osborne was offered to identify Windsor and to place the two men together. Because the testimony was offered to establish identitythat the man with Guthrie on the two occasions was this defendant, Harvey Lee Windsorit was admissible under the exception to the hearsay rule.
Windsor argues that the security measures taken at his trial, and, in particular, in front of one panel of the jury venire, were prejudicial to him. Defense counsel made the following objection:
R.T. at 259-64.
The Court of Criminal Appeals has written:
Goodwin v. State, 495 So. 2d 731, 733 (Ala.Cr. App.1986). The trial judge did not witness the incident the defendant says was prejudicial. Furthermore, defense counsel did not immediately bring the alleged incident to the court's attention. Considering the fact that Windsor was charged with a capital offense, we conclude that the number of guards in the courtroom was not excessive. There having been no abuse of the trial court's discretion in this regard, no reversible error occurred.
Windsor contends that the State violated a pre-trial discovery order when it failed to produce photographic enlargements of certain palm prints and fingerprints of the defendant. The trial court held a hearing outside the presence of the jury and made the following determination:
The Court of Criminal Appeals found "no evidence that the State failed to make that evidence available as soon as practicable in this case." 683 So. 2d at 1034. The trial judge gave the defense additional time to examine the materials before allowing the State to present testimony in relation thereto. We agree with the Court of Criminal Appeals that there was no violation of the discovery order.
Windsor contends that there was insufficient evidence to convict him of the *1056 crime of capital murder because, he argues, the evidence offered against him at trial was almost entirely circumstantial. The Court of Criminal Appeals has written:
Jenkins v. State, 627 So. 2d 1034, 1040 (Ala. Cr.App.1992). The evidence offered at the trial placed Harvey Lee Windsor in the company of Colon Lavon Guthrie on the date of the crime. The two men were identified as being in a Ford Mustang automobile bearing the word "Boss" and matching the description of the vehicle used by the suspects, and bearing a license plate that had been on an automobile in the yard of Windsor's uncle. The Mustang automobile, when the police recovered it, contained articles tying the automobile and Windsor to the murder of Rayford Howard. A review of the record convinces this Court that the evidence was sufficient for a jury to find Harvey Lee Windsor guilty of the capital murder of Rayford Howard.
Windsor contends that the trial court committed error when charging the jury on the theory of complicity because, he argues, the jury was not instructed that the intent to rob was a necessary element of the crime. The jury was charged as follows:
R.T. at 1056-57 (emphasis added). Previously, the trial court had defined robbery in the first degree as follows:
Windsor contends that the trial judge should have charged the jury on voluntary intoxication and manslaughter and that the trial court's failure to do so requires a reversal of his conviction. In support of his argument, Windsor contends that several witnesses testified that he had been consuming alcoholic beverages on the day Rayford Howard was murdered. He cites Anderson v. State, 507 So. 2d 580 (Ala.Cr.App.1987):
507 So. 2d at 584. The Court of Criminal Appeals noted that this issue was not presented to the trial court and, therefore, it reviewed the alleged error in light of the plain error doctrine, Rule 45, Ala. R.App. P. The Court of Criminal Appeals stated, in its June 17, 1994, opinion:
683 So. 2d at 1037. We agree with the Court of Criminal Appeals. We find no plain error in the court's not charging the jury with regard to manslaughter and voluntary intoxication.
Windsor contends that the trial court did not properly instruct the jury that Windsor could not be convicted of capital murder if it found that the intent to commit robbery was formed after Howard's death. Because Windsor did not raise this issue at trial, we review it pursuant to the plain error doctrine.
Hallford v. State, 548 So. 2d 526, 534-35 (Ala. Cr.App.1988). The trial court charged the jury as follows:
R.T. at 1053-56. The jury was instructed that the intentional murder had to occur during the course of a robbery in the first degree. By giving these instructions, the trial judge adequately apprised the jurors of the facts under which they could find the defendant guilty of capital murder.
At the sentencing phase of the trial, the State relied on only one aggravating circumstance, specifically, that the capital offense occurred during the commission of a first degree robbery. Windsor contends that this "double-counting" is unconstitutional.
Coral v. State, 628 So. 2d 954, 965-66 (Ala.Cr. App.1992). See also Burton v. State, 651 So. 2d 641 (Ala.Cr.App.1993). The trial court correctly considered the robbery as an aggravating circumstance.
Windsor argues that he was precluded from introducing certain mitigating evidence during the penalty phase of his trial. In particular, he argues that his mother was not allowed to testify regarding statements doctors made to her following a motorcycle wreck involving Windsor. We hereby adopt the reasoning of the Court of Criminal Appeals, which addressed this issue as follows:
683 So. 2d at 1038. Mrs. Windsor testified at the hearing that "[if Windsor] done anything, he did not know he was doing it. That is all I can say. Before he had that accident, he was a healthy, happy man. He could do anything he set his mind to do. All I can say is he is not the same." R.T. at 1094. We agree with the Court of Criminal Appeals that, although the trial court did err, because Mrs. Windsor testified extensively with regard to the effects the accident had on the defendant no plain error occurred.
Windsor also argues that the State made several prejudicial remarks during the sentencing hearing and that those remarks require a reversal. Specifically, Windsor contends that the State improperly urged the jury to disregard any mitigating evidence; that the State misled the jury into believing that the death penalty was mandatory; that the State referred to Windsor in inflammatory and prejudicial terms; and that the State urged the jury to abjure mercy. None of these alleged errors was objected to by the defense.
Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Cr. App.1990). These alleged errors were not objected to at trial. Considering them in the full context of the prosecution's remarks, we note that the court cautioned the jury near the end of the State's remarks to the jury:
R.T. at 1111. This cautionary instruction to the jury following the State's remarks cured any error.
We have considered all of the issues raised by Windsor, and we have searched the entire record for plain error. We have also considered the appropriateness of the sentence *1062 of death. For the reasons set forth in this opinion, the judgment of the Court of Criminal Appeals affirming Harvey Lee Windsor's capital murder conviction and sentence of death is hereby affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur.
[1] Windsor also alleges error in allowing Sammie Sue Osborne's testimony regarding Guthrie's identification of his friend as "Harvey." This alleged error is discussed in Section X. of this opinion. | August 23, 1996 |
b5cee26c-2a4e-4f16-bbcb-6ad389ca78be | Denson v. Bear, Stearns Securities Corp. | 682 So. 2d 69 | 1941963, 1950039 | Alabama | Alabama Supreme Court | 682 So. 2d 69 (1996)
Bruce DENSON, et al.
v.
BEAR, STEARNS SECURITIES CORPORATION.
BEAR, STEARNS SECURITIES CORPORATION
v.
Bruce DENSON, et al.
1941963, 1950039.
Supreme Court of Alabama.
July 26, 1996.
*70 William S. Pritchard III of Pritchard, McCall & Jones, Birmingham, for Appellants/Cross Appellees Bruce Denson, et al.
J. Michael Rediker and Steve P. Gregory of Ritchie & Rediker, L.L.C., Birmingham, for Appellee/Cross Appellant Bear, Stearns Securities Corporation.
KENNEDY, Justice.
The plaintiffs, Bruce Denson, Allison Leigh Ray, and Investors Unlimited, appeal from a summary judgment in favor of Bear, Stearns Securities Corporation. Bear, Stearns cross-appealed from the denial of its motion for an award of costs.
In order to enter a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmoving party. Downey v. Mobile Infirmary Medical Center, 662 So. 2d 1152 (Ala.1995). In order to defeat a properly supported summary judgment motion, the plaintiff must present "substantial evidence" creating a genuine issue of material fact.
In the fall of 1991, the plaintiffs were contacted by Rodney Kadymir, an agent for the Robert Todd Financial Corporation (hereinafter referred to as "RTFC"). RTFC was acting as the "introducing broker" for the initial public offering of securities related to American Biomed, Inc. ("Biomed"). An introducing broker solicits sales of the securities. After several pitches from Kadymir regarding Biomed securities, the plaintiffs decided to purchase the securities. Bear, Stearns was involved in the proposed sale as the "clearing broker" for RTFC. A clearing broker provides the daily clearance of all securities transactions.
Neither Kadymir nor anyone from RTFC registered the Biomed securities in Alabama, as is required by § 8-6-4, Ala.Code 1975. Therefore, the Biomed securities could not be legally sold to Alabama residents. According to the plaintiffs, Kadymir told them to use an out-of-state address in order to proceed with the purchase of the securities. One of the plaintiffs owned a partial interest in a business in Houston, Texas; at Kadymir's recommendation, that plaintiff supplied the address of the Texas business for all the plaintiffs to use.
The plaintiffs originally sent checks drawn on Alabama banks to Bear, Stearns to purchase the Biomed securities. Bear, Stearns refused to accept these checks. Subsequently, the plaintiffs sent counterchecks; Bear, Stearns accepted the counterchecks and opened accounts for the plaintiffs.
When documents sent to the Texas address were returned to RTFC, it began an investigation, through which it learned that the plaintiffs were Alabama citizens. RTFC asked the plaintiffs to sign affidavits stating that they spent more than half of their time in Texas, but they refused to do so. RTFC cancelled the sale and Bear, Stearns removed the securities from the plaintiffs' accounts.
Approximately six weeks later, Bear, Stearns sent the plaintiffs checks for the amount of the purchase price of the securities. At that time, the Biomed securities had more than doubled in value.
*71 The plaintiffs sued Bear, Stearns; Kadymir; and RTFC, alleging fraud and conversion. Bear, Stearns offered to settle with the plaintiffs, but the plaintiffs rejected the offer. Bear, Stearns then moved for a summary judgment; the court granted its motion. Bear, Stearns asked that costs be awarded in its favor, but the trial court denied costs. The court entered a default judgment against Kadymir and RTFC in the amount of $300,000. The plaintiffs appealed the summary judgment in favor of Bear, Stearns; Bear, Stearns cross-appealed from the order denying an award of costs. Kadymir and RTFC are not parties to this appeal.
The plaintiffs failed to present substantial evidence of fraud on the part of Bear, Stearns; that defendant did not induce the plaintiffs to buy the securities. The plaintiffs presented no evidence that Bear, Stearns did anything more than perform bookkeeping functions in regard to their accounts, nor did they present evidence that Bear, Stearns, as the clearing broker, was liable for the introducing broker's actions. Also, the securities sale violated Alabama law and was unenforceable. See Wallace v. Marr, 561 So. 2d 1104 (Ala.1990). As to the conversion claim, the plaintiffs failed to show that they had an immediate right to possession of the Biomed securities; to prove a right to possession, they would have to prove that the contract was validbut, as stated earlier, the contract was void and unenforceable. Therefore, the trial court properly entered the summary judgment in favor of Bear, Stearns.
As to Bear, Stearns's cross-appeal from the denial of its motion for costs, we conclude that Bear, Stearns was not entitled to an award of costs. In support of its claim, Bear, Stearns cites Atkinson v. Long, 559 So. 2d 55 (Ala.Civ.App.1990). In that case, the Court of Civil Appeals reversed the trial court's order refusing to award costs based on Rule 68, Ala.R.Civ.P. Bear, Stearns's reliance on Rule 68 and on Atkinson is misplaced. Rule 68 deals with settlement offers made "more than fifteen (15) days before the trial begins." (Emphasis added.) The purpose of Rule 68, as is noted in the comments to that rule, is to ensure that a party accept or reject an offer at least 15 days before trial, so that a party will not make preparations for a trial that will never be held. This case did not go to trial; therefore, Rule 68 is not applicable.
Bear, Stearns also argues that costs should be awarded based on Rule 54(d). Rule 54(d) and subsequent case law interpreting that rule give the trial court wide discretion in awarding costs. City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981). Bear, Stearns has made no showing that the trial court abused its discretion in denying the award of costs.
Based on the foregoing, we affirm.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, and COOK, JJ., concur. | July 26, 1996 |
fab76b21-a3a5-4b12-9873-ddb05534207d | Ex Parte Compass Bank | 686 So. 2d 1135 | 1951249 | Alabama | Alabama Supreme Court | 686 So. 2d 1135 (1996)
Ex parte COMPASS BANK.
Re Tarif QANADILO
v.
COMPASS BANK, et al.
1951249.
Supreme Court of Alabama.
September 6, 1996.
Rehearing Denied November 27, 1996.
*1136 Michael L. Edwards, Gregory C. Cook and Lisa J. Sharp of Balch & Bingham, Birmingham, for Petitioner.
Thomas E. Baddley, Jr. and Jeffrey P. Mauro of Baddley & Crew, P.C., Birmingham, for Respondent.
SHORES, Justice.
The defendant Compass Bank petitions for a writ of mandamus directing Judge William J. Wynn of the Jefferson County Circuit Court to set aside his order compelling broad discovery in this case. We grant the writ.
In 1993, Tarif Qanadilo purchased two variable annuity policies through Compass Bank. The policies were named "Franklin Valuemark II variable annuity" and were a product of Allianz Life Insurance Company of North America. Qanadilo later discovered that these variable annuity investments lacked liquidity and that his policies had lost value. In August 1994 Qanadilo filed a putative class action against Compass Bank; Allianz Life Insurance Company; Susan T. Dennis, an employee of Compass Bank at its Scottsboro location; and fictitiously named parties. He sought to represent "all bank customers who have signed transfer documents pursuant to solicitation and advice from the Defendants which transferred their secured investment into speculative and market determinative investments without proper disclosure." Qanadilo's complaint also alleged fraud and negligence. He claims that Compass Bank suppressed information regarding the amount of fees and expenses charged in regard to the Franklin Valuemark II variable annuities he purchased and that Compass Bank failed to supervise its employees and breached its fiduciary duty in connection with the costs, fees, and expenses of the annuities. No class has been certified in the case.
On November 6, 1995, Judge T.M. Smallwood, Jr., entered a partial summary judgment for the defendants on all claims related to the disclosures that had been made in bold print directly above the plaintiff's signature on the application form. His order read in pertinent part:
This order left standing only Qanadilo's claims regarding the alleged failure to disclose costs, fees, and expenses. Judge Smallwood then recused, and the case was assigned to Judge Wynn.
Qanadilo continued to pursue the remaining claims, by filing a broad request for production of documents. His request included these paragraphs:
Compass responded to these requests by presenting affidavits from employees indicating that the requested discovery would require the manual review of thousands of files and thus would be unduly burdensome, oppressive, and expensive. Qanadilo filed a motion to compel discovery, which Judge Wynn granted. Compass Bank then filed a "Motion for Reconsideration," again contending that the request for production of documents was overly broad and burdensome.
On April 24, 1996, Judge Wynn held as follows:
In response, Compass Bank petitioned this Court for a writ of mandamus directing Judge Wynn to set aside his order compelling Compass (1) to produce information that is related to variable annuity products that the plaintiff did not purchase, (2) to produce information on customers who have not complained, (3) to produce information on customers who are not within the class as defined by the plaintiff, and (4) to produce confidential customer information without any restrictions on the use of such information.
Mandamus is the "proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders so as to prevent an abuse of the discovery process by either party." Ex parte Mobile Fixture & Equipment Co., 630 So. 2d 358, 360 (Ala.1993). Mandamus is an extraordinary remedy requiring a showing that there is: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala.1994).
Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion. Ex parte Clarke, 582 So. 2d 1064, 1067 (Ala.1991); Ex parte McTier, 414 So. 2d 460 (Ala.1982). Rule 26(c), Ala.R.Civ.P., recognizes that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. Campbell v. Eastland, 307 F.2d 478 (5th *1138 Cir.1962), cert. denied, 371 U.S. 955, 83 S. Ct. 502, 9 L. Ed. 2d 502 (1963).
Qanadilo argues that because he alleges fraud, discovery should be broad. He contends that, because of his allegation of fraud, he is entitled to unlimited "pattern and practice" discovery. However, even in a fraud case, justice requires the trial court to protect a party from oppression or undue burden or expense. Rule 26(c), Ala.R.Civ.P. Our cases support such protective action by a trial court. In Ex parte Mobile Fixture & Equipment Co., 630 So. 2d 358 (Ala.1993), this Court held that the trial court was within its discretion in denying, as overbroad, a security service's request for production of information concerning investigations, management reviews, and field audits of all employees and all customers. Id. at 360. Such discovery would have required the review of 5,400 files and would have required the defendant to reveal the names, addresses, and telephone numbers of its customers. In Ex parte McTier, 414 So. 2d 460 (Ala.1982), the plaintiff sought discovery of each person, firm, or entity that had leased a protective system from Rollins Protective Services. Rollins objected on the grounds that compliance with the discovery request would require Rollins to review manually a large number of records and would violate its customers' rights to privacy. This Court upheld the trial court's denial of the plaintiff's motion to compel production of documents. Id. The discovery requests denied in both of those cases were far less oppressive and burdensome than the discovery requests Compass Bank has been ordered to comply with in this case.
While a trial court possesses broad discretion in the discovery process, the exercise of that discretion is reviewable. Carbine Constr. Co. v. Cooper, 368 So. 2d 541 (Ala. 1979). We have carefully examined Compass Bank's petition and supporting materials, and we conclude that Compass Bank is entitled to a writ of mandamus requiring the trial judge to vacate his order. A summary judgment has been entered in favor of Compass Bank on all claims that do not relate to the costs, fees, and expenses of the Valuemark II variable annuity. The Valuemark II variable annuity purchased by Qanadilo is a product of Allianz Insurance Company, a defendant in this action. Valuemark II has a different prospectus, different terms and conditions, and different costs and expenses from other variable annuities. Therefore, discovery should be limited to information that is related to the Valuemark II product that the plaintiff purchased.
In addition, we note that there is no dispute that there has been no class certification in this case. In fact, the trial judge has stated on the record that this is not a class action.
We conclude that Compass Bank has made a clear showing that the trial judge abused his discretion in ordering the production of every customer file for every variable annuity. An affidavit presented in evidence estimated that this order would require production of at least 21,246 customer files and would involve the review of files on 35,000 transactions. This would be unduly broad, burdensome, and expensive. The trial judge erred in failing to limit discovery to matters related to the putative class members and to matters related only to the Franklin Valuemark II variable annuity, the annuity purchased by the plaintiff.
For the reasons stated above, the petition for the writ of mandamus is granted. The trial judge is directed to vacate his order compelling production.
WRIT GRANTED.
MADDOX, ALMON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., concurs specially.
HOUSTON, J., recuses.
HOOPER, Chief Justice (concurring specially).
I concur, with the understanding that this Court is directing that the discovery order be vacated as to all four issues raised by Compass Bank. To be more specific, I understand that the trial judge should place restrictions on the use of confidential customer information *1139 provided to the plaintiff by Compass Bank. | September 6, 1996 |
0d63cc9a-f930-4bea-9529-129a34946127 | Kennedy v. Polar-BEK & Baker Wildwood | 682 So. 2d 443 | 1931434, 1931514 | Alabama | Alabama Supreme Court | 682 So. 2d 443 (1996)
Carter S. KENNEDY, individually and d/b/a Kennedy Realty Company
v.
POLAR-BEK & BAKER WILDWOOD PARTNERSHIP, et al.
POLAR-BEK & BAKER WILDWOOD PARTNERSHIP, et al.
v.
Carter S. KENNEDY, individually and d/b/a Kennedy Realty Company.
1931434, 1931514.
Supreme Court of Alabama.
September 13, 1996.
*444 Jesse P. Evans III, Douglas L. McWhorter and Laurie Boston Sharp of Najjar Denaburg, P.C., Birmingham, and James J. Odom, Jr., Birmingham, for Carter S. Kennedy.
*445 Walter J. Sears III and Philip J. Carroll III of Bradley, Arant, Rose & White, Birmingham, for Polar-BEK & Baker Wildwood Partnership et al.
PER CURIAM.
The opinion of June 28, 1996, is withdrawn, and the following opinion is substituted therefor.
Carter S. Kennedy, a licensed real estate broker, sued Polar-BEK & Baker Wildwood Partnership ("Polar-BEK"), seeking damages for the breach of an express contract to pay a 5% real estate sales commission. In the alternative, Kennedy claimed the breach of an implied-in-fact contract to pay the 5% commission. The jury returned a general verdict in favor of Kennedy in the amount of $455,000, the amount of the 5% commission claimed by Kennedy. However, the trial court granted Polar-BEK's motion for a judgment notwithstanding the verdict (J.N.O.V.) on the express contract claim and granted it a new trial on the implied contract claim. The trial court also indicated in its judgment that if this Court reversed the J.N.O.V. on the express contract claim, then a new trial was also in order on that claim. Both Kennedy and Polar-BEK appeal.
The basic dispute in this case concerns a parcel of land that Polar-BEK conveyed to State Farm Mutual of Mobile Insurance Company for $9,100,000. Viewed in a light most favorable to Kennedy, the record suggests the following: Kennedy was one of several partners in a business partnership known as Wildwood Associates Unlimited ("Wildwood Associates"). Wildwood Associates purchased the property that is the basis of this dispute ("the Wildwood property") in October 1984 and owned it until March 1988, when it entered into a contract to sell it to the Aronov Group. In addition to Kennedy, Ron Carlson, who is now an employee of Polar-BEK, was a partner in Wildwood Associates. Carlson received a commission from Wildwood Associates in the approximate amount of $310,000 for the sale of the property to the Aronov Group. The contract to sell the property to the Aronov Group was executed in March 1988, but the sale did not close until 1989. After the conveyance to the Aronov Group, Polar-BEK purchased the Wildwood property. Polar-BEK was interested in selling portions of the property for commercial development.
Kennedy testified at trial that on various occasions after Polar-BEK purchased the Wildwood property Carlson had made various statements respecting the manner in which a person could earn a commission for the sale of a Wildwood property parcel. Carlson admitted at trial that he had announced a commission policy at the Birmingham Sales Club. Kennedy testified, regarding Carlson's announcement, that Carlson said that if a broker or agent physically "put a sales prospect on the property" and then "turned that person over to Polar-BEK," the broker or agent would earn a 5% commission if the property was sold to that prospect. The evidence at trial indicated that several other similar sales commissions had been paid by Polar-BEK.
In April 1989, Rome DeBlas came to Birmingham to investigate site possibilities for the location of a new State Farm office. DeBlas did not meet with Kennedy at that time, but he did identify the Wildwood property as a potential site during that visit. In August 1989, DeBlas returned to Birmingham, and Gene Crocker, an employee of Alabama Power Company, arranged several meetings for him. It is undisputed that one of the people DeBlas met with was Kennedy.
The record further indicates that, shortly before DeBlas's August visit to Birmingham, Crocker telephoned Pat O'Sullivan, another partner in Wildwood Associates, about a possible prospect for the Wildwood property. Crocker did not tell O'Sullivan that he was looking for the owner of the Wildwood property. O'Sullivan then telephoned Ron Carlson (then Polar-BEK's employee) and inquired about the terms of a real estate commission. Carlson told O'Sullivan three ways a commission could be earned from Polar-BEK for the sale of the Wildwood property. O'Sullivan made notes of these conversations, as follows:
O'Sullivan was not a broker or agent and, therefore, could not act in connection with any proposed sale. He did, however, at the request of Crocker, set up a meeting for DeBlas with Kennedy for August 9.
On August 9, Kennedy telephoned Crocker at Alabama Power Company and met with Crocker and the "prospect," DeBlas. Kennedy went to the Alabama Power Company offices, where he and DeBlas discussed site requirements. After the meeting, they visited the Wildwood property. While there, Kennedy and DeBlas discussed site characteristics and demographics. Kennedy testified at trial that he arranged an appointment for DeBlas to meet Carlson of Polar-BEK. Kennedy testified that he offered to go with DeBlas to Carlson's office for the meeting later that day. Kennedy also testified that Carlson knew Kennedy was a broker when Kennedy set up the meeting for DeBlas and Carlson. Kennedy stated that Carlson never mentioned to him that he had a previously arranged meeting with DeBlas.
DeBlas met with Carlson on August 9 and told him that he had met with Kennedy on the Wildwood property. That same day, Kennedy prepared and forwarded a letter to Carlson, notifying Carlson that he had met with DeBlas at the Wildwood property. Carlson responded, acknowledging receipt of the letter.
Thereafter, Kennedy made several attempts to further communicate with Carlson and Polar-BEK regarding the proposed sale of the Wildwood property. Between the first of August 1989 and the end of the year, Kennedy sent numerous letters to DeBlas requesting information about the sale of the Wildwood property. In fact, on December 5, 1989, Kennedy wrote Carlson, indicating that he had heard rumors that Polar-BEK questioned Kennedy's right to a commission if State Farm acquired a portion of the Wildwood property. On that same day, Carlson transmitted to Polar-BEK's "management committee" all of the correspondence from Kennedy, and Carlson notified Kennedy by letter that there had been no decision made respecting Kennedy's claim to the commission.
In January 1990, Kennedy wrote Alex Baker of Polar-BEK. In his letter, Kennedy mentioned that he had spoken with Carlson about his claim for a sales commission and that he would like to meet in an attempt to resolve any dispute or questions that had arisen regarding his claim. Thereafter, Kennedy met with Baker and others, but the matter was not resolved. Polar-BEK took the position that Kennedy was not due any compensation.
In May 1990, Polar-BEK entered into a contract for the sale of a portion of the Wildwood property, agreeing to convey that portion to State Farm for $9,100,000. The contract included a provision stating that no real estate broker would be entitled to a commission on the sale. Polar-BEK refused to pay Kennedy a 5% commission, and Kennedy sued.
As noted previously, Kennedy appeals the trial court's grant of a J.N.O.V. in favor of Polar-BEK on his express contract claim, while Polar-BEK appeals the denial of its J.N.O.V. motion on his implied contract claim. A motion for a J.N.O.V. tests the sufficiency of the evidence on the same basis as a motion for a directed verdict. Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985). On review of a J.N.O.V., this Court must consider the evidence in a light most favorable to the nonmoving party and if from the evidence reasonable inferences can be drawn in favor of that party's position then the J.N.O.V. must be reversed. Terrell v. John Deere Co., 491 So. 2d 918 (Ala.1986).
The dispositive issue is whether the record contains substantial evidence to support the jury's finding that a contract existed between Kennedy and Polar-BEK. The essential elements for a contract in Alabama are an agreement, consideration, two or more contracting parties, a legal object, and capacity. Shirley v. Lin, 548 So. 2d 1329 (Ala. 1989). Because the case was submitted to the jury on the alternative theories of an express contract and an implied-in fact contract, over directed verdict motions by the defendants, and the jury rendered a general verdict, we must determine whether Kennedy *447 offered substantial evidence in support of both theories. Green Tree Acceptance, Inc. v. Tunstall, 645 So. 2d 1384 (Ala.1994); Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
We first note that under Alabama law, claims of both an express and an implied contract on the same subject matter are generally incompatible. This Court has recognized that where an express contract exists between two parties, the law generally will not recognize an implied contract regarding the same subject matter. Vardaman v. Florence City Bd. of Educ., 544 So. 2d 962 (Ala.1989); Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So. 2d 792 (Ala.1978); Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309 (1917). However, the existence of an express contract in the above-noted cases was not in dispute; only its terms were disputed. In this case, the existence of an express contract (allegedly formed by Kennedy's acceptance by performance of Polar-BEK's unilateral offer) was highly disputed and remained a question of fact, as did the alternative existence of an implied contract. Thus, the law may recognize an implied contract where the existence of an express contract on the same subject matter is not proven. Thus, it was for the jury to decide whether an express contract existed, or an implied contract, and we conclude that the trial court properly submitted both alternative contract theories to the jury.
Viewing the evidence in a light most favorable to Kennedy, as the nonmovant on the motion for J.N.O.V., we conclude that the jury could have found that the statements made by Carlson as a representative of Polar-BEK constituted an express offer for a unilateral contract, and we conclude that Kennedy presented substantial evidence that he performed the terms of that offer. Evidence was presented that, through its duly authorized agent, Polar-BEK promised to pay a 5% sales commission to anyone performing two specific acts: first, put a prospective purchaser on the property and, second, turn the prospective purchaser over to Polar-BEK. Although the testimony as to these events was disputed, the jury could have believed Kennedy's testimony as to the terms of the Polar-BEK offer. The jury also reasonably could have believed that Kennedy performed the acts requested by Polar-BEK and performed them in such a manner that his performance constituted an acceptance of the proposal. The jury could have found that he arranged an appointment with DeBlas, the prospective purchaser's representative, and took him to the site. It also could have found that he "turned over" DeBlas to Carlson, who was an employee of Polar-BEK. Thus, the trial court erred in granting Polar-BEK's motion for a J.N.O.V. on the express contract claim.
Alternatively, viewing the evidence in a light most favorable to Kennedy, we conclude that he also presented substantial evidence of an implied contract. The jury reasonably could have found that while Kennedy did not perform whatever actions were necessary to accept Polar-BEK's unilateral offer and create an express contract, the parties did form an implied contract.
Kennedy alleged that he was the "procuring cause" of the sale of the Wildwood property and that he was due a commission for the sale. This Court has stated:
Hendrix, Mohr & Yardley, supra, 359 So. 2d at 795. Similarly, one noted legal commentator has explained:
E. Allan Farnsworth, Contracts § 3.10 (2d ed. 1990) (footnotes omitted). Thus, the jury reasonably could have found that Kennedy's actions in relation to DeBlas and Carlson amounted to an offer to furnish his assistance to Polar-BEK in return for reasonable compensation, which Polar-BEK was due to pay. The trial court correctly denied Polar-BEK's motion for a J.N.O.V. on the implied contract claim.
The trial court also ruled that if this Court were to reverse its grant of a J.N.O.V. to Polar-BEK on Kennedy's express contract claim, then it would grant a new trial on that claim. However, we have concluded that both of Kennedy's alternative contract claims were supported by substantial evidence and were properly submitted to the jury, which rendered a verdict in favor of Kennedy. The general rule is that a jury verdict is entitled to a strong presumption of correctness. Northeast Alabama Regional Medical Center v. Owens, 584 So. 2d 1360 (Ala.1991). While we acknowledge the power of a trial court to set aside verdicts, that power, "`while inherent in order to prevent irreparable injustice, is a power hesitantly exercised because of the solemnity of a jury verdict regarded in the background of that most precious of rights, the right of a trial by jury.' Walker v. Henderson, 275 Ala. 541, 544, 156 So. 2d 633, 636 (1963)." White v. Fridge, 461 So. 2d 793, 794 (Ala.1984).
In sum, we conclude that the trial court correctly denied Polar-BEK's motion for a J.N.O.V. on the implied contract claim, but erred in entering the J.N.O.V. on the express contract claim and in ordering a new trial in the event this Court reversed the J.N.O.V. The J.N.O.V. and the new trial order are reversed, and the cause is remanded for the entry of a judgment in favor of Kennedy.
We also note that because we are reversing the trial court's judgment and holding in favor of Kennedy, interest should be added to the amount of the jury's verdict according to Ala.Code 1975, § 8-8-10. However, because the jury's general verdict may have been rendered on the implied contract claim, on which the amount of Kennedy's damages would not have been a sum certain until determined by the jury, prejudgment interest may not be awarded. Ala.Code 1975, § 8-8-8; Health Care Authority of the City of Huntsville v. Madison County, 601 So. 2d 459 (Ala.1992).
OPINION OF JUNE 28, 1996, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED; APPLICATION OVERRULED.
ALMON, SHORES, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., dissents. | September 13, 1996 |
7da454de-a605-4013-8fe3-6a23b1bb6122 | Morris v. Merritt Oil Co. | 686 So. 2d 1139 | 1940228 | Alabama | Alabama Supreme Court | 686 So. 2d 1139 (1996)
LaNita MORRIS
v.
MERRITT OIL COMPANY, et al.
1940228.
Supreme Court of Alabama.
September 6, 1996.
Rehearing Denied November 22, 1996.
*1140 Clifford C. Sharpe, Mobile, and Robert J. Hedge of Jackson, Taylor & Martino, P.C., Mobile, for Appellant.
Willie J. Huntley, Jr., of Crosby, Saad, Bebbe & Crump, P.C., Mobile, for Merritt Oil Company.
Thomas M. Galloway, Jr. and Andrew J. Rutens of Collins, Galloway & Smith, Mobile, for Everette W. Barnette.
Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for Henry McCulley.
COOK, Justice.
The plaintiff appeals from a summary judgment entered in favor of all defendants in an action in which the plaintiff claimed that the defendants negligently or wantonly failed to provide her with a safe workplace; fraudulently suppressed material facts; failed to "rescue"; and committed outrageous conduct.
Defendant Merritt Oil Company is owned by defendants Fred Walding and Rick Merritt. Defendant Everette W. Barnette is "sales coordinator" for Merritt Oil. Defendant Henry McCulley is the owner of a company that provides video/arcade game machines (including the "Klondike" machine) to businesses.
Barnette and Walding saw the Klondike machine in a convenience store in Wagarville, Alabama, and contacted McCulley about placing Klondike machines in Merritt Oil stores. McCulley placed the Klondike in Merritt Oil stores in Grove Hill, Thomasville, Creola, and Prichard in November 1992 on the basis of oral agreements between himself and Barnette (acting for Merritt Oil). Sixty percent of the profits from the games went to McCulley, and 40 percent to Merritt Oil.
The Klondike was removed from the Grove Hill store after a short time because customers were abusing the machine.
In Thomasville, the police chief told McCulley that he did not want a "gambling device" in his town, and a Thomasville police officer came to the Merritt Oil store there and ordered that the Klondike to be unplugged. The machine was unplugged for a short time; however, Walding, Merritt, and Barnette decided to plug it back in, and no further complaints about the Thomasville machine were received.
The city attorney in Creola ordered that the Klondike be removed from a Merritt Oil store in that town because of complaints that it was a "gambling device."
Despite these experiences, the defendants did not investigate the legality of the Klondike.
The plaintiff, LaNita Morris, was employed as a cashier in the Merritt Oil convenience store in Prichard. In November 1992, when McCulley placed the Klondike machine in the Prichard store, he showed Morris how the game worked and how to replace the quarters in the machine.
In December 1992, a Prichard police officer visited the Merritt Oil store and asked Morris to demonstrate to him how the machine worked. The officer returned to the police station and, after consulting the Code of Alabama, decided that the Klondike was an illegal gambling device. The officer returned *1141 to the store, confiscated the Klondike, and arrested Morris. Three charges were filed by the Prichard police regarding the Klondike: 1) operating a vending machine without a vending license; 2) conspiring to promote gambling; and 3) promoting gambling. Morris was charged only with promoting gambling; however, this charge was nol-prossed.
In May 1993, the attorney general's office issued an opinion stating that, under Alabama law, the Klondike was an illegal gambling device.
Morris sued Merritt Oil; its owners, Fred Walding and Rick Merritt; its sales coordinator, Everette W. Barnette; and Henry McCulley. Her complaint alleged negligence and wantonness in placing an illegal gambling device in the store; negligence and wantonness in failing to investigate the legality of the device before placing it in the store; failure to provide Morris a safe place to work; failure to "rescue" Morris when she was arrested, or failure to take reasonable steps to protect Morris; suppression of material facts regarding the alleged gambling device; and outrageous conduct.
Barnette and Merritt Oil cross-claimed against McCulley, alleging fraud, specifically that McCulley had fraudulently led them to believe that the machine was legal. The trial court granted the defendants' motions for summary judgment on Morris's claims against them, and granted McCulley's motion for a summary judgment on the cross-claims. Morris appealed.
Morris acknowledges that there is no Alabama precedent for her claims under the specific facts of this case. However, says Morris, pursuant to a basic and fundamental principle of law, she is due a remedy for the harm she has suffered: "[E]very person, for any injury done him, in his ... person or reputation, shall have a remedy by due process of law." Ala. Const.1901, Art. I, § 13.
The defendants point out that this constitutional provision applies only to rights that exist at the time of the injury:
Reed v. Brunson, 527 So. 2d 102, 114 (Ala. 1988) (quoting Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939) (emphasis supplied)).
Morris, however, argues that she has "a vested interest in a particular cause of action" for the breach of various duties owed her by the defendants that she says proximately and foreseeably resulted in her alleged harm. Morris claims that the defendants breached duties they owed her (1) when they negligently and wantonly placed an illegal gambling device in the store where she worked; and (2) when they negligently and wantonly failed to investigate to determine whether the Klondike was a legal machine. These two allegations are the basis of Morris's contention that the defendants failed to provide her with a safe workplace. Further, says Morris, the defendants (1) suppressed a material factthe illegality of the Klondike machineand thereby breached their duty to inform her of a circumstance that would have affected her decision to work in the Merritt Oil store; and (2) breached their duty to "rescue" her when she was arrested.
Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185, 1190 (Ala.1992) (quoting Hall v. Thomas, 564 So. 2d 936, 937 (Ala.1990)).
Ledbetter v. United American Ins. Co., 624 So. 2d 1371, 1373 (Ala.1993).
There was no evidence before the trial court to indicate that defendant Henry McCulley owed any duty to Morris. McCulley's business is to provide video/arcade games to businesses that request such products. At the request of Merritt Oil, McCulley supplied Klondike machines to Merritt Oil convenience stores, believing the Klondike to be a legal game. McCulley's only contact with Morris was in demonstrating to her how to maintain the Klondike and how to explain its operation to customers. Morris presented no evidence of a relationship between herself and McCulley that would support a finding that McCulley owed any duty to Morris. The summary judgment was correctly entered in favor of McCulley.
Procter & Gamble Co. v. Staples, 551 So. 2d 949 (Ala.1989), addressed the duty to provide a safe workplace:
551 So. 2d at 951. And, in Harris v. Hand, 530 So. 2d 191 (Ala.1988), this Court held:
530 So. 2d at 192 (emphasis in original).
Defendant Everette Barnette, as sales coordinator for Merritt Oil, exercised some authority with regard to the operation of Merritt Oil convenience stores and was a partner with Rick Merritt and Fred Walding in a separate business venture. Barnette, however, was not Morris's employer, nor did he have "control or custody of [Morris's] employment or place of employment." Procter & Gamble, supra, 551 So. 2d at 951. Barnette was not delegated, and he had not assumed, the duty to provide Morris with a safe workplace. The summary judgment was proper as to Barnette on this claim.
With regard to Merritt Oil, Merritt, and Walding ("the Merritt Oil defendants"), we note that the common law and Alabama's statutory law require an employer to provide employees with a reasonably safe workplace. Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635 (Ala.1992); Bellew v. Sloan, 536 *1143 So. 2d 917 (Ala.1988). Ala.Code 1975, § 25-1-1, provides:
(Emphasis added.)
According to Morris, the emphasized portion of § 25-1-1(c)(3) requires that the workplace be used for a "lawful purpose." Therefore, reasons Morris, when the Merritt Oil defendantswho did have the "control or custody of [Morris's] employment or place of employment" (Procter & Gamble, supra), installed an illegal gambling device in the Merritt Oil convenience store where she worked, they breached their duty to provide her with a reasonably safe workplace. Morris contends that the foreseeable and proximate result of the installation of the Klondike was that the police would confiscate it as an illegal gambling device and arrest her as the person exercising control over the game.
Morris further argues that the Merritt Oil defendants' duty to provide a safe workplace includes the duty to exercise reasonable care to inspect and investigate "devices furnished to employees to be used in their employment." The evidence revealed that the Merritt Oil defendants may have had questions about the legality of the Klondike but failed to make an effort to determine whether it was an illegal gambling device. This failure, says Morris, was a wanton and intentional breach of the duty to inspect a device that, uninspected and added to the convenience store premises, rendered Morris's workplace unsafe.
Based on these facts, says Morris, there was substantial evidence that the Merritt Oil defendants acted "negligently, recklessly, wantonly, willfully, and/or intentionally" in breaching their duty to provide her with a safe workplace.
The Merritt Oil defendants respond by first contending that Morris has stretched the application of § 25-1-1 beyond the legislative intent behind it. This statute, they say, was designed to protect employees from inherent or intrinsic dangers in the workplace or from violation of safety regulations that make the workplace unsafe to the physical "life, health, and safety" of the employees. The Merritt Oil defendants claim that they did not breach this statutory duty because there was no danger to Morris's life, health, or safety.
The Merritt Oil defendants also argue that Morris's interpretation of § 25-1-1 would impose upon employers an unreasonable duty to anticipate and foresee any possible intervention by law enforcement in an employer's place of business. This interpretation of § 25-1-1, say the Merritt Oil defendants, is strained and exceeds the legislative intent behind the statute and, if accepted, would effectively prevent any reasonable application of the statute.
The Merritt Oil defendants also claim that Morris has unreasonably construed Alabama law regarding employers' inspecting devices they furnish their employees for use at work. Morris cites two cases in support of her argument: Fuller v. Lanett Bleaching & Dye Works, 190 Ala. 208, 67 So. 378 (1914); and *1144 Epsey v. Cahaba Coal Co., 186 Ala. 160, 64 So. 753 (1914). Fuller, however, dealt with injuries and death resulting from the fall of a defective freight elevator, and Epsey involved a defective engine valve. Again, say the Merritt Oil defendants, the presence of the Klondike in the Prichard convenience store posed no threat to Morris's "life, health, and safety"; therefore, they argue, there was no breach of the duty to provide Morris with a safe workplace.
There is no doubt that the Merritt Oil defendants were charged with the duty to provide Morris with a safe workplace. The foreseeability of the harm that could result to Morris from their conduct, therefore, is the test of whether they breached their duty to provide Morris with a safe workplace. Ledbetter, supra. Foreseeability is normally an issue to be decided by the trier of fact and not one to be resolved by the trial court on a motion for summary judgment. Thetford v. City of Clanton, 605 So. 2d 835 (Ala.1992).
That the Merritt Oil defendants breached their duty to provide her with a safe workplace cannot be inferred from the fact that the Klondike machine was installed in the Merritt Oil convenience store in Prichard. It is true that the Merritt Oil defendants' experiences with law enforcement representatives at other locations regarding the questionable legality of the Klondike machines made it foreseeable that confrontations with law enforcement were likely to occur at the Prichard store. The evidence, however, reveals that all previous law enforcement interventions consisted of requests that the Klondike be removed or unplugged, with the additional evidence that a machine that had been un plugged at the request of the police had been reactivated with no further complaint from the police. The evidence does not support the inference that the Merritt Oil defendants could have foreseen that Morris or another Merritt Oil employee would be arrested or jailed.
Additionally, there is no precedent for extending the provisions of § 25-1-1 to require that, in meeting the duty to provide employees with a safe workplace, an employer must ensure that nothing in the workplace disturbs the emotional well-being of the employees.
In light of the foregoing, we conclude that the trial court correctly entered the summary judgment in favor of the Merritt Oil defendants on the claim that they negligently or wantonly (see Valley Bldg. & Supply, Inc. v. Lombus, 590 So. 2d 142 (Ala.1991)) failed to provide Morris with a safe workplace.[1]
In support of her claim that Barnette and the Merritt Oil defendants fraudulently suppressed the material fact of the illegality of the Klondike, Morris cites Baker v. Bennett, 603 So. 2d 928 (Ala.1992), which held, in part, as follows:
603 So. 2d at 934-35. See, also, Townsend Ford v. Auto-Owners Ins. Co., 656 So. 2d 360 (Ala.1995).
Morris contends that Barnette and the Merritt Oil defendants had a duty to disclose to her that the Klondike could be an illegal gambling device because, she says, based on such a disclosure she could have exercised her right to act to protect herself against the results of having an illegal gambling device in the workplace. The defendants breached this duty, Morris says, by fraudulently suppressing such a material fact.
Barnette and the Merritt Oil defendants respond with the proposition that, "[a]s a matter of law, one can only be liable for concealing facts of which one has knowledge. Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936)." Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981). See, also, Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So. 2d 1288 (Ala.1993). Further, "`[u]nder § 6-5-102, mere silence is not fraud unless confidential relations or special circumstances exist; active concealment or misrepresentation must be present.'" King v. National Foundation Life Ins. Co., 541 So. 2d 502, 505 (Ala.1989) (quoting Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496, 505 (Ala.1984)).
There was no evidence that the defendants knew the Klondike to be an illegal gambling device when it was installed in the Prichard store in November 1992. Morris presented no credible evidence that, before her arrest in December 1992, the defendants knew the Klondike was illegal. The defendants became aware that the game was illegal when the attorney general's office issued its opinion in May 1993. There was no evidence of fraudulent suppression of material facts to the detriment of Morris. The summary judgment in favor of the defendants was proper as to this claim.
Morris also claims that the defendants deliberately chose not to aid her when she was in peril and that they made this choice with a full appreciation of its consequences. The defendants, say Morris, performed the criminal act of installing an illegal gambling device and then chose to allow her to pay the consequences for that criminal act.
57A Am.Jur.2d Negligence § 98, p. 152 (1989). Restatement (Second) of Torts, §§ 314-22, pp. 116-35 (1965), sets out "standards of conduct" that are in accord with this statement from Am.Jur.2d. The comments to these Restatement sections focus upon the duty that arises, for example, on the part of an employer when its employee suffers "serious harm." This duty on the part of an employer is predicated upon the employment relationship and a knowledge of the potentially harmful condition.
We have held that the defendants had no reason to believe there was a likelihood that Morris would be arrested or would suffer any other kind of harm as a result of her employment relationship with Merritt Oil; therefore, we must hold that the defendants were under no duty to "rescue" Morris when she was arrested.
In support of her claim of outrageous conduct (the tort of "outrage"), Morris argues that although "no single incident or fact" amounts to outrageous conduct on the part of the defendants, the facts, all taken together and examined as a whole, show that the defendants conspired to intentionally inflict *1146 emotional distress upon Morris because, she says, they knew or should have known that her arrest was the result that would occur from their conduct, citing U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098 (Ala.Civ.App. 1982), cert. denied, 415 So. 2d 1102 (Ala.1982).
Busby v. Truswal Systems Corp., 551 So. 2d 322, 324 (Ala.1989).
Morris testified that, although she went to a psychiatrist's office, she was never seen or treated by a psychiatrist for emotional distress. Morris also testified that, when the criminal charge against her was nol-prossed, her emotional state improved. Morris claimed that she experienced physical symptoms such as sleeplessness, lack of appetite, and crying when the incident was mentioned; however, she did not testify that her life was ever "intolerable."
The evidence does not support an inference that Barnette or the Merritt Oil defendants intentionally or recklessly inflicted emotional distress upon Morris. The conduct engaged in by Barnette and the Merritt Oil defendants was entrepreneurial in nature and nothing in the evidence suggests it was intended to harm Morris. Based on the information available to them when they decided to install the Klondike, we must conclude that the manner in which these defendants conducted themselves will not support a finding of reckless or intentional infliction of emotional distress. Consequently, the summary judgment was also proper on the outrage claim.
The summary judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur.
MADDOX, J., concurs in the result.
KENNEDY, J., dissents.
MADDOX, Justice (concurring in the result).
I concur in the result because I do not believe an employer's duty to provide a safe workplace under § 25-1-1, Ala.Code 1975, extends to protecting an employee from emotional injuries. Under the Alabama Workers' Compensation Act, an employee cannot recover for purely emotional injuries. See Lawrence T. King, Re-Testing the Exclusivity Provision of the Alabama Workers' Compensation Act: Where We Are Now, 18 Am. J. Trial Advoc. 295 (1994). I do not believe the legislature intended to extend § 25-1-1 to cover purely emotional injuries. In my opinion, § 25-1-1 was designed to protect employees from physical injuries resulting from the employer's failure to provide a safe workplace and does not extend the employer's duty so far as to allow the imposition of liability for purely emotional injuries.
[1] In Peters v. Calhoun County Commission, 669 So. 2d 847 (Ala.1995), the Court held that "[w]hile the issue of foreseeability in the context of an intervening cause may be decided as a matter of law, ... it is more commonly a question for the trier of fact." 669 So. 2d at 850. However, although Barnette argues "intervening cause," the evidence does not support an inference that the intervention of law enforcement would result in the arrest and jailing of an employee of a convenience store where a Klondike machine had been installed. All of the prior incidents had resulted in law enforcement's requesting that the machine be unplugged or be removed from the store. There was even evidence that at one of the stores deputy sheriffs had played the Klondike.
[2] We have written:
"We note that this Court has previously refused to recognize negligent infliction of emotional distress as actionable. See Reserve National Ins. Co. v. Crowell, 614 So. 2d 1005 (Ala. 1993), cert. denied, 510 U.S. 824, 114 S. Ct. 84, 126 L. Ed. 2d 52 (1993); Allen v. Walker, 569 So. 2d 350 (Ala.1990). We again reject the argument that we should recognize a cause of action that would allow one to recover damages for emotional distress caused by another's mere neglect."
Gideon v. Norfolk Southern Corp., 633 So. 2d 453, 453-54 (Ala.1994). | September 6, 1996 |
dbe47d05-ed90-46e0-b0da-7174dc6fe67f | Ex Parte Toyota Motor Corp. | 684 So. 2d 132 | 1951034 | Alabama | Alabama Supreme Court | 684 So. 2d 132 (1996)
Ex parte TOYOTA MOTOR CORPORATION and Toyota Motor Sales, U.S.A.
(In re Carol C. PRICE, as administratrix of the Estate of Mell W. Price II, deceased v. TOYOTA MOTOR CORPORATION and Toyota Motor Sales, U.S.A., Inc.).
1951034.
Supreme Court of Alabama.
September 6, 1996.
*133 D. Alan Thomas, T. Kelly May and Frank E. Lankford, Jr. of Huie, Fernambucq & Stewart, Birmingham, for Petitioners.
Nat Bryan and Ralph Bohanan, Jr. of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, for Respondent.
HOUSTON, Justice.
The Court of Civil Appeals reversed a judgment based upon a jury verdict for Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc. (hereinafter together referred to as "Toyota"), the defendants in a wrongful death case. This was done because a juror, W. P., had pleaded guilty to third degree burglary 12 ½ years before he served on the petit jury in this case. Toyota had peremptorily struck W.P.; however, W.P. was reinstated as a member of the petit jury because the plaintiff, Carol C. Price, as administratrix of the estate of Mell W. Price II, deceased, contended that Toyota had violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in striking W.P. The trial court upheld Price's challenge in the face of what Toyota contended were race-neutral reasons (that W.P. was unemployed, had owned a "lemon" automobile, was young and single, and, therefore, would more likely be somewhat negative toward Toyota and tend to render a higher verdict). The jury found for Toyota. Price sought a new trial because W. P., who Price had insisted be reinstated as a juror, had served on the jury. The trial court denied the new trial motion. Price appealed, and the Court of Civil Appeals reversed and remanded. Price v. Toyota Motor Corp., 684 So. 2d 131 (Ala.1996). We granted Toyota's petition for certiorari review. Toyota raised two issues:
(1) Whether Price waived the right to challenge W. P.'s statutory disqualification through a failure to exercise due diligence to keep disqualified persons, such as W. P., off the jury panel; and
*134 (2) Whether Price waived the error by successfully challenging Toyota's peremptory strike of W.P. under Batson.
The facts underlying this case are undisputed. Carol Price filed a wrongful death action in the Tuscaloosa County Circuit Court in 1993, based on the death of Mell W. Price II. The case came up for trial during the week of May 8, 1995. As was the custom in Tuscaloosa County, the initial qualification of the jury pool was conducted all at once by a "qualifying judge," who would not preside over the trial, prior to the beginning of the several trials scheduled for that week.[1] Price's attorneys chose not to attend the initial qualifying session. During the initial session, the qualifying judge twice asked the members of the jury pool, "Is there anyone who has been convicted of an offense involving moral turpitude?" During the qualifying session, the jury was never asked if any juror had "lost the right to vote." Ala.Code 1975, § 12-16-60(a)(4).[2]
After assembling the venire for Price's case, the trial judge conducted a second voir dire examination. Price's attorneys were present for this second voir dire. The trial judge began the voir dire himself, with a series of questions, but he asked no questions concerning criminal convictions, losing the right to vote, or any other related matters. Following this, Price's attorneys conducted a lengthy and extensive voir dire, but asked no questions concerning criminal convictions, losing the right to vote, or any other related matters.
W.P. was a member of the jury pool for this case. Once the voir dire had concluded, Toyota used a peremptory strike to remove W.P. from the jury panel. Price challenged the strike of W.P., under Batson, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), arguing that the strike was racially motivated. After considering Toyota's stated reasons for the strike, the trial judge disallowed *135 the strike and, at Price's request, seated W.P. on the jury.
On May 13, 1995, the jury returned a verdict for Toyota. After the verdict was returned, Price's attorneys investigated the members of the jury and learned that W.P. had pleaded guilty to burglary in the third degree, a Class C felony, and resisting arrest, a Class B misdemeanor. Price then moved for a new trial, arguing that she was entitled to a new trial because, she said, if W.P. had revealed his burglary conviction "[her attorneys] could have ... asked ... [follow-up] questions, including whether [W.P.'s] civil rights had been subsequently restored," to determine if W.P. was statutorily disqualified to serve on a jury, pursuant to § 12-16-60(a)(4). Toyota opposed Price's new trial motion, arguing that Price had waived her right to challenge W.P.'s qualifications to sit on the jury by failing to exercise due diligence to identify statutorily disqualified venire members during voir dire and by challenging Toyota's strike of W.P. despite Price's lack of knowledge of whether W.P. was statutorily qualified to serve on the jury. In support of its argument in opposition to Price's new trial motion, Toyota attached the affidavit of juror W.P., in which W.P. stated in part:
After considering the arguments from both sides, the trial court denied Price's new trial motion, on the basis of the "invited error doctrine."
The plaintiff, Price, appealed the trial judge's denial of her new trial motion to this Court; pursuant to Ala.Code 1975, § 12-2-7, we transferred the appeal to the Court of Civil Appeals. The Court of Civil Appeals reversed the trial court's denial of Price's motion for a new trial. That court wrote:
Price v. Toyota Motor Corp., 684 So. 2d at 131. On this certiorari review, Toyota requests that we reverse the Court of Civil Appeals' holding and reinstate the judgment in its favor.
On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals. In McBride v. Sheppard, 624 So. 2d 1069, 1070-71 (Ala.1993), this Court stated the standard applicable on review of a trial court's ruling on a motion for new trial:
Judge Cates, while serving on the Court of Appeals, wrote Beasley v. State, 39 Ala.App. 182, 96 So. 2d 693 (1957), Alabama's leading case in the area of disqualified jurors. In Beasley, he enunciated a three-part test for reviewing trial court rulings on new trial motions in cases where an allegedly disqualified person served on the jury:
Beasley, 39 Ala.App. at 185, 96 So. 2d at 695-96.
We need not consider the first question of the Beasley test (see footnotes 1 and 2). As to the third question, our opinions in Noble Trucking Co. v. Payne, 664 So. 2d 202 (Ala. 1995), and Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984), hold that, provided that the complaining litigant exercised due diligence to have disqualified persons removed from the jury pool (question two), a venireperson's failure to respond to a question concerning a statutory disqualification requires the grant of a new trial. The issue before this Court, then, is whether the trial judge correctly denied Price's new trial motion based upon his finding that Price had invited the error she now complains of, by failing to exercise due diligence to keep W.P., who she now alleges to be disqualified, off the jury panel.
Under Alabama law, a "[f]ailure to timely challenge a juror for cause may result in a waiver of the right to do so if the fact of disqualification is either known or, through the exercise of due diligence, should be known." Watters v. Lawrence County, 551 So. 2d 1011, 1016 (Ala.1989) (citing Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So. 2d 431 (1971)).[3] Relying on Noble Trucking Co. v. Payne, 664 So. 2d 202 (Ala.1995), and Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984), the Court of Civil Appeals held that the trial judge had erred in finding that Price had failed to exercise due diligence to keep unqualified persons off the jury panel. After closely examining the holdings and underlying reasoning of Noble Trucking and Chrysler Credit, we must conclude that neither of those cases supports an order overturning the trial court's finding that Price failed to exercise due diligence. Chrysler Credit did not involve an allegation of a lack of due diligence; it dealt, instead, with the question whether literacy is a statutory qualification for jury service in Alabama. The trial judge in Noble Trucking had, in the presence of the attorney for Payne, the complaining litigant, asked the members of the jury pool whether "any of them [were] convicted felon[s] whose voting rights had not been restored." Noble Trucking, 664 So. 2d at 202. We rejected Noble Trucking's argument that "Payne waived any right to complain of the disqualification" by failing to again "ask the prospective jurors whether any of them were felons whose voting rights had not been restored," id., at 203, and held that an attorney cannot reasonably be expected "to conduct [a] voir dire examination that would be a repetition of that already conducted by the court." Id. at 204. Because the judge's question had been specific and understandable, Payne's attorney could not reasonably have done anything further to assist the court in discovering the disqualifying characteristic of the juror in question.
The facts of the present case are distinguishable from those of Noble in two very important ways. First, Price was not present when the qualifying judge conducted the initial questioning of the jury. Price's attorneys had no way of knowing whether any questions had been asked of the jury pool concerning loss of the right to vote because of criminal convictions (§ 12-16-60(a)(4)) or conviction of a felony (§ 12-16-150(5)); despite this lack of knowledge, Price's attorneys *137 asked no questions about the loss of the right to vote and no questions about criminal convictions. Second, and more important, in this present case the only question asked of the jury pool concerning criminal convictions was not as complete[4] or as understandable as the question that had been asked in Noble Trucking. While the trial judge in Noble Trucking asked the veniremembers "if any of them was a convicted felon whose voting rights had not been restored," 664 So. 2d at 202, the judge presiding over the initial questioning of the jury pool in this case asked: "Is there anyone who has been convicted of an offense involving moral turpitude?" Even if Price's attorneys had been present when the initial voir dire was conducted, the requirement of due diligence would not have been automatically satisfied in this case. Due diligence oftentimes requires active attorney participation in the voir dire. If Price's attorneys had been present at the initial voir dire, they, like other reasonable attorneys, would have recognized that even persons learned in the law have difficulty in ascertaining those offenses that involve moral turpitude.[5] As evidenced from W.P.'s uncontradicted affidavit, it was very foreseeable that an understandable ignorance might cause a veniremember not to respond to such a question. Price's attorneys should have requested that the judge restate the question in simpler nontechnical terms or should have simply asked the question again without the use of confusing legal terms of art. Furthermore, a positive response to the question asked ("Is there anyone who has been convicted of an offense involving moral turpitude?") would not necessarily be grounds for disqualification under § 12-16-60(a)(4). See footnotes 2 and 4, and see also Hunter v. Underwood, supra.
We recently held in General Motors Corp. v. Hopper, 681 So. 2d 1373 (Ala.1996), that a party cannot wait until the entry of an adverse judgment to fulfill his or her duty to assist the trial court in determining the statutory qualifications of the members of the jury panel. In that case, we quoted with approval the following language from Pogue v. State, 429 So. 2d 1159, 1161 (Ala.Crim.App. 1983):
See Hopper, 681 So. 2d at 1374. We, therefore, cannot conclude from the record that the trial judge plainly and palpably erred in concluding that Price had failed to exercise due diligence in fulfilling her duty to assist the trial court during voir dire in identifying and removing disqualified persons from the jury pool.
Because we find merit in Toyota's first argument, we need not decide the issue whether, by challenging Toyota's strike of W.P., Price waived the right to assert that W.P. was statutorily disqualified. We do note the obvious fundamental unfairness that would result from allowing Price, who had failed to fully participate in voir dire and therefore did not know whether W.P. was statutorily qualified to serve as a juror, to profit from her successful challenge of Toyota's strike of W.P.
REVERSED AND REMANDED.
*138 HOOPER, C.J., and SHORES, KENNEDY, and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
ALMON and COOK, JJ., concur in the result.
MADDOX, Justice (concurring specially).
I concur with the opinion. I write specially only to point out an additional reason why a new trial was not merited in this case.
The Alabama Rules of Civil Procedure were adopted primarily to ensure that cases and controversies like this would be decided on their merits. In fact, Rule 1(c) of those Rules specifically states: "These rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action."
Commenting on these rules, retired Circuit Judge James Haley, who worked so long and hard as a member of this Court's Advisory Committee on the Rules of Civil Procedure, said that Rule 1 was one of the most important of the civil rules and that it should be understood to apply to all of the other rules. I agree with Judge Haley.
In my opinion, the spirit of the Rules of Civil Procedure generally requires that challenges to prospective jurors on the ground that they are statutorily or otherwise disqualified should always be made pre-trial. In applying the provisions of Rule 1(c) to this case, I ask this question: Would it be "just" to allow a party who has not been diligent in determining a potential disqualification of a prospective juror to go through an entire trial and then obtain a new trial because a particular juror was statutorily disqualified? I think not.
I make one additional comment. The civil rules offer litigants sufficient time and opportunity to determine the qualifications of jurors, and I have strongly advocated the use of a questionnaire to assist a litigant in determining which jurors would be best qualified to serve in any particular case. See Ex parte Bruner, 681 So. 2d 173 (Ala.1996) (Maddox, J., concurring in the result); General Motors v. Hopper, 681 So. 2d 1373 (Ala.1996) (Maddox, J., concurring specially). If the plaintiffs had used a juror questionnaire in this case, they might have discovered the juror's past criminal conviction and thus prevented the problem now before us.
[1] Ala.Code 1975, § 12-16-60(a), provides as follows for the qualifications of jurors:
"(a) A prospective juror is qualified to serve on a jury if the juror is generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment and also:
"(1) Is a citizen of the United States, has been a resident of the county for more than 12 months and is over the age of 19 years;
"(2) Is able to read, speak, understand and follow instructions given by a judge in the English language;
"(3) Is capable by reason of physical and mental ability to render satisfactory jury service, and is not afflicted with any permanent disease or physical weakness whereby the juror is unfit to discharge the duties of a juror;
"(4) Has not lost the right to vote by conviction for any offense involving moral turpitude."
[2] The Alabama Constitution of 1901, Art, VIII, § 182, is the only provision under Alabama law relating to losing the right to vote. In Hunter v. Underwood, 471 U.S. 222, 232-33, 105 S. Ct. 1916, 1922-23, 85 L. Ed. 2d 222 (1985), the United States Supreme Court appeared to declare § 182 unconstitutional as denying the equal protection guaranteed by the 14th Amendment to the United States Constitution:
"At oral argument in this Court, the appellants' counsel suggested that, regardless of the original purpose of § 182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as assault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimesfelonies and moral turpitude misdemeanorsare acceptable bases for denying the franchise. Without deciding whether § 182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights [v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)]."
But, see, Ex parte Poole, 497 So. 2d 537, 544 (Ala.1986), and the plurality opinion in Williams v. Lide, 628 So. 2d 531, 533-34 (Ala.1993). There is no evidence that W.P. lost the right to vote. His affidavit in opposition to the new trial motion provided the only evidence in the record of his voting status:
"To the best of my knowledge, I believe that I have the right to vote in any election. I am not aware that my right to vote has been revoked."
Because Toyota does not question Price's assertion that, because of § 182, W.P. is not entitled to vote and is, therefore, disqualified from jury service pursuant to § 12-16-60(a)(4), we will assume for purposes of this appeal that W.P. was not statutorily qualified to serve on the jury in this case.
[3] See also Ala.Code 1975, § 12-16-150, which provides:
"It is good ground for challenge of a juror by either party:
". . . .
"(5) That he has been convicted of a felony."
See Holland v. Brandenberg, 627 So. 2d 867, 870 (Ala.1993):
"Failure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a [party] cannot sit back and invite error based on a juror's disqualification."
(Citations omitted.)
[4] It is the loss of the right to vote that disqualifies a person from jury service. Ala.Code 1975, § 12-16-60(a), states:
"A prospective juror is qualified to serve on a jury if the juror ...:
". . . .
"(4) Has not lost the right to vote by conviction for any offense involving moral turpitude."
[5] This Court has written: "`Moral turpitude implies something immoral in itself, regardless of... whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.'" Pippin v. State, 197 Ala. 613, 616, 73 So. 340, 342 (1916) (quoting Fort v. Brinkley, 87 Ark. 400, 112 S.W. 1084 (1908)). | September 6, 1996 |
a55f95a8-54af-45f3-9d75-01428aca706d | Ex Parte Green | 689 So. 2d 838 | 1950069 | Alabama | Alabama Supreme Court | 689 So. 2d 838 (1996)
Ex parte Nancy GREEN and Barbara S. Rich.
(Re Nancy GREEN and Barbara S. Rich v. ETOWAH COUNTY BOARD OF EDUCATION).
1950069.
Supreme Court of Alabama.
September 13, 1996.
Joe R. Whatley, Jr., Andrew C. Allen, and Samuel H. Heldman of Cooper, Mitch, Crawford, Kuykendall & Whatley, L.L.C., Birmingham; and Larry H. Keener of Floyd, Keener, Cusimano & Roberts, P.C., Gadsden, for Petitioners.
James E. Turnbach of Turnbach & Warren, P.C., Gadsden, for Respondent.
William H. Reece of Gardner, Middlebrooks, Fleming & Hamilton, P.C., Mobile, for Amicus Curiae Alabama Education Association, in support of Petitioners.
KENNEDY, Justice.
The Fair Dismissal Act, §§ 36-26-100 to -108, Ala.Code 1975, provides that a nonteacher employee of a school system who works 20 or more hours a week is a full-time employee and is entitled to a hearing on a proposed termination.
We granted certiorari review in order to determine whether a nonteacher employee is entitled to a hearing under the Act before being terminated if that employee works more than 20 total hours a week, but works in multiple positions, spending less than 20 hours a week in the position for which the termination is proposed.
The plaintiffs, Nancy Green and Barbara Rich, were employees of the Etowah County Board of Education. Each worked in a school lunchroom and also worked as a custodian. Each worked more than 20 total hours a week as a lunchroom worker, but fewer than 20 hours a week as a custodian. The Board terminated their service as custodians, without a hearing. However, they remained as lunchroom workers. It should be noted that each plaintiff had two employment contracts and received two paychecks.
Green and Rich sued the Board, alleging that they had been terminated as custodians without being given the hearing they claimed *839 was mandated by the Act. The trial court entered a judgment in favor of the Board, and Green and Rich appealed. The Court of Civil Appeals held that a nonteacher employee was not entitled to a hearing under the Fair Dismissal Act when the employee works less than 20 hours in a particular position and the employee is terminated from that position. Green v. Etowah County Board of Education, 689 So. 2d 835 (Ala.Civ.App.1995).
The Board argues that the plaintiffs had two distinct jobs in the school and that because they worked less than 20 hours as custodians, their termination as custodians was not covered by the Act. We disagree; we think that interpretation would defeat the purpose of the Act.
First, the overall purpose of the Fair Dismissal Act is to provide nonteacher employees with a fair and swift resolution of proposed employment terminations. Bolton v. Board of School Comm'rs, 514 So. 2d 820 (Ala.1987). Second, the plain language of the Act provides that nonteacher employees, specifically including "lunchroom workers and custodians," with "20 or more hours in each normal working week of the school term" are entitled to the protections under the Act. § 36-26-100. Considering the intent of legislature and reading the Actgiving the words their natural, plain, ordinary, and commonly understood meaningwe hold that Rich and Green were entitled to a hearing. Both were nonteacher employees who worked more than 20 hours a week, regardless of the distinct jobs they did during the week, and they were, therefore, entitled to the due process protections set out in the Act.
Additionally, in two cases this Court has held that a "partial" termination of employment triggered the right to a hearing under the Act. In Ledbetter v. Jackson County Board of Education, 508 So. 2d 244 (Ala. 1987), the employee sued the school board to determine whether its action in reducing her hours from 35 to 30 hours per week constituted a "termination"[1] under the applicable provisions of the Act. We held that it did, because the employee had a property interest in the whole of her employment, and thus that she was entitled to a hearing under the Act to review the proposed termination of part of that property interest. The issue in Carter v. Baldwin County Board of Education, 532 So. 2d 1017 (Ala.Civ.App.1988), was whether the reduction of "regularly scheduled working hours" in excess of 40 per week was considered a partial termination that would require notice and a hearing. Following Ledbetter, we held that it was.
Green and Rich's termination is analogous to the partial terminations in Ledbetter and Carter. Due process, as we noted in Ledbetter, is at the heart of the Act. Denying the plaintiffs a hearing in front of the Board was error. Accordingly, we reverse the trial court's judgment and remand.
REVERSED AND REMANDED.
ALMON, SHORES, COOK, and BUTTS, JJ., concur.
MADDOX and HOUSTON, JJ., concur in the result.
HOOPER, C.J., dissents.
HOUSTON, Justice (concurring in the result).
Nancy Green and Barbara S. Rich were full-time employees of the Etowah County Board of Education because their duties required 20 or more hours' work as lunchroom workers during each normal working week of the school term. Ala.Code 1975, § 36-26-100. Therefore, they were covered by Article 4 of Chapter 26, Title 36. Green and Rich had completed their probationary period of employment (three years), § 36-26-101, and were on permanent status. It is settled Alabama law (absent special circumstances concerning election laws) that:
IMED Corp. v. Systems Engineering Associates Corp., 602 So. 2d 344, 346 (Ala.1992). See also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687 (Ala.1991); Employees' Retirement System of Alabama v. Head, 369 So. 2d 1227, 1228 (Ala.1979); Bagley v. City of Mobile, 352 So. 2d 1115 (Ala.1977); and 3 Sutherland Statutory Construction, 681 (4th ed. 1992).
Therefore, Green and Rich could be terminated only under the provisions set out in § 36-26-103. The fact that the work hours that were terminated were only those in which Green and Rich did custodial work under a separate contract is not relevant. Ledbetter v. Jackson County Board of Education, 508 So. 2d 244 (Ala.1987). Green and Rich were full-time employees of the Board on permanent status. It is not relevant what Green and Rich's rights would be under § 36-26-103 if they had two separate contracts with the Board and neither of those contracts required them to work 20 hours or more a week.
MADDOX, J., concurs.
HOOPER, Chief Justice (dissenting).
The trial court correctly rejected the plaintiffs' claim. The plaintiffs claim that by working more than 20 hours per week as lunchroom workers and at the same time working less than 20 hours per week as custodians entitles them to a hearing before the custodial employment can be terminated under the Fair Dismissal Act, §§ 36-26-100 to -108, Ala.Code 1975. The Act covers nonteacher employees of a school system who work 20 or more hours per week. The majority holds that the two positions, lunchroom worker and custodian, were in fact one position with two duties, and that the plaintiffs are entitled to a hearing because they met the 20-hour-work-week minimum. The case was tried ore tenus and the trial court determined the two positions to be two different jobs.
The cases cited by the majority are clearly distinguishable from this case. Both Ledbetter v. Jackson County Board of Education, 508 So. 2d 244 (Ala.1987), and Carter v. Baldwin County Board of Education, 532 So. 2d 1017 (Ala.Civ.App.1988), involved merely a reduction in work hours for a single position. In Ledbetter, a lunchroom worker's hours were reduced from 35 to 30 per week. The employee worked more than 20 hours per week in one position or capacity. She clearly had a property interest in her employment and was, therefore, entitled to a hearing pursuant to the Act. In Carter, the employees had "dual duties including cafeteria work, custodial work, [work as] teachers' aides, and driving buses." 532 So. 2d at 1018. In both Ledbetter and Carter, the employee had one job that exceeded 20 hours.
In this case, Green and Rich each received separate paychecks, separate raises, and separate leave benefits, and each kept separate logs for the two separate types of employment. They clearly held two different jobs. The superintendent of education for Etowah County testified that the positions held by the plaintiffs were separate positions, that the custodial position was only a part-time job, and that the hours for that position were less than 20 hours per week. The Fair Dismissal Act covers nonteacher employees of a school system who work 20 or more hours a week. Green and Rich were clearly not covered by the Act and, thus, had no right to a hearing on their termination.
[1] The employee also argued that the reduction in hours was a "transfer" under the Act. However, the Court did not address that argument. | September 13, 1996 |
05924fa5-9306-44f2-be3d-118c5fd96636 | Baptist Memorial Hosp. v. Gosa | 686 So. 2d 1147 | 1950156, 1950157 | Alabama | Alabama Supreme Court | 686 So. 2d 1147 (1996)
BAPTIST MEMORIAL HOSPITAL
v.
Brenda GOSA.
BAPTIST MEMORIAL HOSPITAL
v.
Iris WRIGHT.
1950156, 1950157.
Supreme Court of Alabama.
September 6, 1996.
Rehearing Denied December 13, 1996.
Curtis Wright and Curtis Wright II of Dortch, Wright & Wright, Gadsden, and Oakley Melton, Jr. of Melton, Espy, Williams & Hayes, Montgomery, for Appellant.
Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for Appellees.
*1148 HOOPER, Chief Justice.
Iris Wright sued Baptist Memorial Hospital ("BMH"), alleging that a man had shot her in BMH's parking lot as she left work one evening. She sought damages on the theory that BMH was liable for the harm caused by the criminal act of that third party. Wright's friend, Brenda Gosa, also sued BMH on the same theory, seeking damages for wanton or negligent infliction of emotional distress; Gosa alleged that she was in the vicinity of the crime against Wright and became frightenedspecifically, Gosa claims she was assaulted.
BMH appealed from a judgment for the plaintiff in each case, following a jury trial. The issues on appeal are: 1) May BMH use as an affirmative defense to Wright's claim the fact that it paid workers' compensation to Wright after her injury? We answer that question yes. 2) May Gosa recover damages from BMH based on the criminal actions of a third party that occurred in BMH's parking lot? We answer no. We reverse and remand.
Wright and Gosa were employees at BMH. On Saturday night, June 22, 1991, Wright and Gosa left work together at 9:30 p.m. and exited the rear of the hospital building into the employee parking lot. They stood in the parking lot and talked with each other for about 10 minutes before walking to their cars. When Wright arrived at her car, a man approached her, grabbed her purse, and shot her in the stomach as he left.
Gosa heard Wright yelling and thought that Wright had slipped and fallen. Gosa went over to assist Wright. Gosa claims that when she reached Wright, the man with the gun was still in the area looking at them and holding the gun.
Wright elected to and did receive workers' compensation disability and medical payment benefits. Thereafter, Wright and Gosa sued BMH, alleging negligence, wantonness, and/or willfulness in failing to provide security. BMH moved for a directed verdict based upon the affirmative defense of immunity (under the Workers' Compensation Act) as to Wright's claim. The trial judge denied BMH's motion. BMH also argued, as a basis for a directed verdict as to both plaintiffs' claims, that the evidence failed to establish that BMH had a duty to protect Wright and Gosa from third-party criminal acts in the hospital parking lot. The trial court denied BMH's motion for a directed verdict. The jury returned verdicts in favor of both plaintiffs. The jury assessed Wright's damages as follows: past damages, $76,380; future damages, $408,978; punitive damages, $402,816; for total damages of $888,174. It assessed Gosa's damages as follows: past damages, $83,614; future damages, $473,424; punitive damages $402,816; for total damages of $959,854. The court entered judgments for the plaintiffs based on the verdicts.
BMH argues, among other things, that, as to Wright, the trial judge erred in denying a directed verdict in favor of BMH, based upon undisputed evidence that Wright elected to and did receive workers' compensation disability benefits and workers' compensation medical payment benefits. BMH also argues that, as to both plaintiffs, the trial court erred in denying its motion for a directed verdict against the claims alleging a failure to protect the plaintiffs from criminal acts of a third party.
The trial court erred in failing to direct a verdict in favor of the defendant, BMH, as to all claims asserted by Wright. It is undisputed that Wright accepted workers' compensation payments from BMH, her employer. This Court has consistently held that "the acceptance of compensation payments under the Work[ers'] Compensation Act constitutes an election that estops the employee from resorting to any other remedy." Davis v. M.C. Dixon Lumber Co., 551 So. 2d 305, 306 (Ala.1989), citing Kelley v. Dupree, 376 So. 2d 1371 (Ala.1979).
Workers' compensation immunity under Ala.Code 1975, § 25-5-53, is, as Wright argues, an affirmative defense. Bechtel v. Crown Cent. Petroleum Corp., 451 So. 2d 793, 795 (Ala.1984). The hospital amended its original answer to add an affirmative defense *1149 of workers' compensation immunity, but Wright contended at trial and again before this Court that the hospital's failure to plead workers' compensation immunity in its original answer precluded the hospital from later amending its answer to include a § 25-5-53 defense. Wright argues that the hospital's delay in pleading the affirmative defense prejudiced her. Wright's argument is without merit.
Rule 15(a), Ala.R.Civ.P., states:
(Emphasis added.) Unlike parties attempting to amend under the federal version of Rule 15(a), an amending party in Alabama need not show good cause in order to amend its pleadings, as long as the amendment is filed "more than [42] days" before trial is first set. It is up to the party opposing the amendment to come forward, make a motion for disallowance of the amendment, and then demonstrate to the trial court that justice requires that the amendment be disallowed.
The hospital's amendment adding a workers' compensation immunity defense was filed more than 42 days before the trial date set in this case. Wright had the heavy burden of proving that justice required that the hospital's amendment be disallowed. Wright asserted that she was prejudiced by the hospital's delay in filing the amendment because the statute of limitations for bringing a co-employee action against certain hospital employees had run before the amendment was filed. In essence, Wright argues that had she known that the hospital would raise this obviously dispositive affirmative defense of workers' compensation immunity she would have amended her complaint to add co-employee claims, which are not entirely subject to § 25-5-53.
However, nothing prevented Wright from bringing any potential co-employee claims before the statute of limitations ran on those claims. If Wright was prejudiced, she was prejudiced by her own tactical decision not to assert her potential co-employee claims; BMH's delay in adding the affirmative defense was not the cause of Wright's decision not to assert the co-employee claims.
It is well settled that absent a special relationship or special circumstances, a person has no duty to protect another from criminal acts of a third person. See Broadus v. Chevron USA, Inc., 677 So. 2d 199 (Ala. 1996); Steiger v. Huntsville City Board of Education, 653 So. 2d 975 (Ala.1995); Saccuzzo v. Krystal Co., 646 So. 2d 595 (Ala.1994); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.1986).
On at least one previous occasion, a plaintiff has urged this Court to adopt Restatement (Second) of Torts, § 344 (1965), which places a generalized duty on the owner of premises to discover, warn against, and protect against the criminal acts of a third party. However, this Court has rejected that doctrine and has retained the general rule that absent a special relationship or special circumstances a person has no duty to protect another from criminal acts of a third person. Broadus, 677 So. 2d at 202; Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984). However, "[t]here is a [single] exception to this general rule, which arises where the `particular criminal conduct was foreseeable.'" Moye, 499 So. 2d at 1371, quoting Henley v. Pizitz Realty Co., 456 So. 2d at 276.
In Moye, this Court explained the analysis a court must consider in determining whether to impose liability on a premises owner for the criminal acts of a third party:
"In spite of police protection and security services of whatever type or form, criminal acts continue to be committed and this is a problem which confronts this society's citizens individually and as a whole. As this Court pointed out in Parham v. Taylor, [402 So. 2d 884, 886 (Ala.1981)], quoting from Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky.1972):
Moye, 499 So. 2d at 1371-72.
In Moye, this Court also discussed several prior cases in which defendants were not held liable for the criminal acts of third parties:
Moye, 499 So. 2d at 1372.
When this Court wrote Moye, it had never imposed liability upon a premises owner for the criminal acts of a third party:
Moye, 499 So. 2d at 1372.
Since Moye, this Court has recognized at least two situations warranting the imposition of liability. In Saccuzzo v. Krystal Co., 646 So. 2d 595 (Ala.1994), this Court, while finding no liability in the situation there presented, discussed those two situations:
646 So. 2d at 596-97.
Clearly, Thetford and Young are distinct from this case. In Thetford, the innkeeper was given actual, express, and specific notice that a specific person might attempt to commit a criminal act against another specific person. There was no such notice in this case. In Young, a special relationship was created because the hospital anesthetized the plaintiff and placed her in a situation in which she was "uniquely dependent upon the *1152 hospital for protection." The plaintiff Gosa was not placed by BMH in a "unique" situation that would impose a special duty upon the hospital.
Therefore, the number and frequency of prior criminal acts in the subject area the area of BMH's parking lotis the only basis upon which Gosa could rely in alleging foreseeability that a person would probably be injured by a third party's criminal act while on the defendant's premises:
Moye, 499 So. 2d at 1372-73.
Gosa claims that during the five-year period before the event leading to this case there were 59 criminal events occurring in the area of BMH's parking lot.[1] These events occurred in Sector 4301 of Gadsden, the area and vicinity of the hospital. Sector 4301 includes the hospital and its parking lot, as well as the Hamiter Professional Building, other doctors' offices, the Goodyear Clinic, the Goodyear plant, the apartments across the street from the hospital, and several homes. R.T. 401.
In order to determine whether a particular criminal act was reasonably foreseeable, we must consider the number and frequency of prior criminal acts at the place where the particular criminal act occurred. Moye, 499 So. 2d at 1372. In Ortell v. Spencer Companies, 477 So. 2d 299 (Ala.1985), this Court considered whether for the owner of a convenience store it was foreseeable that there was a probability that an employee/clerk of the store would be robbed and forced into the restroom of the store to perform deviant sexual acts with a third-party criminal.
In Ortell, there had been 96 crimes, not including larcenies of vehicles, reported in the two-block area surrounding the store in the three-year period preceding the robbery and sexual abuse of the employee. Nevertheless, this Court stated that the occurrence of 96 crimes in 3 years, an average of 32 crimes per year, did not impose a duty upon the defendant to protect the plaintiff from the crime for which she suffered at the hands of the third-party criminal. Ortell, 477 So. 2d at 300. This Court held:
477 So. 2d at 300.
In this present case, there were about 57 incidents reported in a five-year period. However, approximately 48 of those incidents involved either thefts of a vehicle or thefts from a vehicle in which the suspect was never seen and in which the suspect never assaulted or threatened the owner or driver of the vehicle. Of the remaining nine incidents, sixincluding the incident in this caseinvolved a physical touching. Of those six crimes, only one crimethe crime in this caseinvolved a gun. In the five-year span of incidents Gosa cites as evidence, there is not one prior incident wherein a person was assaulted or threatened by use of a firearm.
*1153 The nine incidents that did not involve theft of or from a vehicle are as follows: (1) a man sat on a doctor's car in the parking lot and ran off when he was spotted; (2) and (3) two persons burglarized two houses near the hospital, but were never seen; (4) a man robbed a woman of her purse, but no weapons were involved and the robber ran after grabbing the purse; (5) a man punched another man, whom he knew, while they were in the woods north of the hospital[2]; (6) a woman pulled the hair of another woman, whom she knew, in BMH's parking lot; (7) a woman was slapped by a family member in the hospital waiting room after the family received news that a third member of their family had just died; the victim also claimed that the relative who slapped her had threatened other family members with a knife; (8) a woman and her male acquaintance got into an argument in the parking lot, and the man struck the woman; and (9) the robbery and the assault in this case.
Aside from the incident in this case, during the five-year period, there had been a per-year average of only 1.6 crimes involving a physical touching in Sector 4301. Moreover, there had been no crime involving a firearm within the five years preceding the incident in this case. Therefore, we conclude that it could not be considered reasonably foreseeable that the assault against Gosa would occur. (See appendix for the 5-year trend before the crime in this case.)
In Ortell, there had been on average, 32 crimes (excluding vehicle thefts) committed per year in the subject area. In Gosa's case there had been approximately 12 crimes committed per year in the subject area. If vehicle thefts and other property thefts are excluded (as by the reasoning of Ortell), then on average less than two crimes per year had been committed in the preceding five years.
We hold that the number and frequency of crimes were not sufficient to give BMH actual or constructive notice that a third party would assault Ms. Gosa.[3] There had been no shooting in Sector 4301 during the five years mentioned in the record.
The plaintiff Gosa may have a civil remedy against the person who assaulted her. However, she has no claim against BMH. Our law in this area is clear. BMH was entitled to a directed verdict on Gosa's claims alleging negligence, wantonness, and/or willfulness. BMH had no duty to protect her from the criminal acts of the third party, because it was not foreseeable that such criminal acts would occur.
We reverse the judgments and remand for the trial judge to enter judgments for the defendant, Baptist Memorial Hospital, as to the claims of both plaintiffs.
REVERSED AND REMANDED.
MADDOX and ALMON, JJ., concur.
HOUSTON, J., concurs specially.
SHORES, KENNEDY, and COOK, JJ., concur in the result.
*1154 HOUSTON, Justice (concurring specially).
In addition to the Chief Justice's excellent statement of the reasoning in Section III, "Liability Based on Criminal Acts of a Third Party," with which I concur, I point out another reason Baptist Memorial Hospital was entitled to a judgment against Brenda Gosa's claims. Gosa alleged that she was harmed when, upon responding to the cries of her wounded friend, Iris Wright, she came face to face with Wright's armed attacker and was frightened. She further alleges that the hospital negligently and/or wantonly failed to provide adequate security and that that failure caused her fright and mental anguish. Gosa's claim is an attempt to recover for negligent or wanton infliction of emotional harm; such a recovery is, without question, not allowed under Alabama law. See, e.g., Gideon v. Norfolk Southern Corp., 633 So. 2d 453 (Ala.1994).
[1] Gosa claims that there were "59 events" in those five years. However, it appears that she has included two crimes that occurred before the five-year period leading up to the incident in this case. The appendix to this opinion lists 57 crimes and that list is an accurate record of the crimes that occurred during 1991 (the year in which this event happened) and during the five preceding years. For the purpose of this opinion, adding or subtracting two crimes from the 5-year total would not affect the rationale or decision in this case.
[2] The plaintiffs list this incident as one of the incidents occurring in Sector 4301, but, according to the plaintiffs' description of Sector 4301, it does not appear that the "woods" were in Sector 4301.
[3] There is a dispute as to whether Ms. Gosa was assaulted, but for the purpose of our analysis we assume that she was.
[4] There was a total of 57 crimes; see footnote 1. | September 6, 1996 |
0d6047a5-5ccb-44f1-a2ed-71e12ab04e60 | Ex Parte Meeks | 682 So. 2d 423 | 1950502 | Alabama | Alabama Supreme Court | 682 So. 2d 423 (1996)
Ex parte Larry MEEKS, et al.
(Re Ronald MORGAN, et al. v. Larry MEEKS, et al.).
1950502.
Supreme Court of Alabama.
September 6, 1996.
*424 N. J. Cervera of Cervera & Ralph, Troy, for Petitioners.
Joseph E. Faulk and Keith Watkins of Calhoun, Faulk, Watkins & Clower, L.L.C., Troy, for Respondents.
COOK, Justice.
Three of the six members of the Pike County Commission petitioned for a writ of mandamus directing the Pike County Circuit Court to vacate its order in favor of the other three members of the Commission in a declaratory judgment action.[1]
A brief review of the legislation giving rise to this controversy is necessary for a complete understanding of the parties' contentions.
The Code of Alabama of 1852 authorized "courts of county commissioners," composed of the judge of probate ("as principal judge") and four commissioners, to transact a variety of business on behalf of the county, with "all matters where the court [was] divided" to be "determined by the judge of probate." These provisions were adopted, unamended, by subsequent codes. See Tit. 9, Chap. VII, §§ 697, 707 (Code of 1852); Tit. 9, Chap. VII, §§ 825, 835 (Code of 1867); Tit. 9, Chap. VIII, §§ 739, 749 (Code of 1876); Tit. 9, Chap. VII, §§ 819, 829 (Code of 1886-87).
The corresponding provisions of the Civil Code of 1896 (Chap.22, §§ 951, 961) were identical to the earlier sections except that the provision setting the commissioners' term of office at four years was amended by the addition of "and until their successors are elected and qualified." These provisions remained the same in the 1923 Civil Code, at Art. 1, §§ 6748, 6765; and in Tit. 12, at §§ 5 and 21, Ala.Code of 1940 (Recomp.1958).
A 1980 Act amended the "county commission" provisions of the Code (now codified at Ala.Code 1975, § 11-3-1 et seq.). The 1980 amendment, however, did not affect 1) the basic composition of the commission ("the judge of probate, who shall serve as chairman, and four commissioners"); 2) the commissioners' terms of office ("for four years... and until their successors are elected and qualified"); or 3) the method for preventing a vote stalemate among the commissioners ("In all matters where the county commission is divided, the same must be determined by the chairman of the county commission [the judge of probate]."). §§ 11-3-1 and -20.
In 1986, the legislature enacted Act No. 86-323, 1986 Ala. Acts, which redivided Pike County into six (rather than four) districts. Thereafter, the Pike County Commission consisted of six members.
In 1988, Pike County voters ratified Act No. 88-308, which became Amendment 503 to the Alabama Constitution of 1901. Amendment 503 is generally referred to as the "Pike County Government Modernization Amendment." Among other things, it prescribed *425 that the judge of probate of Pike County was no longer to act as the chairman of the Pike County Commission. In 1989, pursuant to Amendment 503, the legislature adopted Act No. 89-783, which provided that the chairman of the Pike County Commission would no longer be the judge of probate but would "be elected by the qualified electors" of Pike County and would "hold office for a term of four years ... and until his successor is elected and qualified."
Act No. 93-382, also a local act, made a further change in the method of selecting the chairman of the Pike County Commission:
(Emphasis added.)
Act No. 93-382, which became effective on May 10, 1993, did not include the provisions in Act No. 89-783 setting out the chairman's specific term of office and the holdover provision ("and until his successor is elected and qualified"). Further, although the 1993 act required that the commission chairman be chosen from among the six commissioners, it made no change in the method for resolving a vote deadlock among the commissioners ("determined by the chairman"). The act did, however, 1) provide for the chair to receive a $5,000 salary "in addition to the salary for commissioner as compensation for serving as Chair of the Pike County Commission"; 2) state that its provisions were "severable" and that "[i]f any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains"; and 3) provide that "[a]ll laws or parts of laws which conflict with [Act No. 93-382] are repealed."
The petitioners[2] (Larry Meeks, Charlie Harris, and Willie Thomas) and the respondents (Ronald M. Morgan, Wayne Gibson, and Don Wambles) are the Pike County commissioners. Respondent Morgan served as chairman of the commission from November 1994 to November 1995. During the commission's meeting on November 13, 1995, the commissioners were unable to elect a new chairman, each vote ending in a three-to-three tie. The commission met again on November 27, 1995, and again was unable to break the stalemate on the election of a commission chairman. The commissioners chose Petitioner Thomas to preside over the November 27 and December 11 meetings of the commission.
On December 7, 1995, these respondents filed in the circuit court a complaint for a declaratory judgment, claiming that the commission's inability to elect a new chairman had "shut down the operation of the Pike County government." The complaint also alleged that these petitioners had refused to attend meetings of the commission and that the controversy could cause "irreparable damage to the citizens of Pike County" because, the complaint alleged, the commission could not function without a chairman. The complaint asked the circuit court for a judgment declaring that Respondent Morgan could continue as commission chairman and that, pursuant to Ala.Code 1975, § 11-3-20, he could cast the tie-breaking vote.[3]
The petitioners filed a motion to continue the hearing set for December 19, attaching copies of the minutes of the November 27 and December 11 meetings of the commission to show that all members of the commission had been present for the meetings and that commission business had been conducted as usual. The petitioners also maintained that there was no "emergency" situation, *426 contrary to the allegation of the declaratory judgment complaint, because commission business was being carried on and because the next meeting of the commission would not take place until January 8. The trial court denied the motion to continue.
Following the hearing on December 19, the trial court on December 20 issued an order that read, in part, as follows:
The petitioners point out that the trial court concluded that the acts involved here should be read together, "giving each a field of operation to the extent they are not repugnant to each other," so that the provisions of § 11-3-20 and of Act No. 89-783 not expressly changed or repealed by the 1993 act are still viable. This reasoning, say the petitioners, ignores the language of Section 4 of Act No. 93-382, stating that "all laws or parts of laws which conflict with this act are repealed." Further, say the petitioners, the trial court's rationale does not take into consideration that, until the adoption of the 1993 act (providing that the commission chairman was to be chosen from the commission membership), the judge of probate or the commission chairman was never a voting member of the commission except in cases requiring a tie-breaking vote.
The petitioners, then, claim two distinct statutory conflicts: 1) the conflict between Act No. 89-783's holdover provision and the absence of that provision from Act No. 93-382; and 2) the conflict between § 11-3-20's procedure for a vote deadlock and Act No. 93-382's lack of that procedure. The petitioners ask this Court 1) to order the trial court to vacate its order; 2) to declare that Commission Chairman Morgan's term of officeNovember 1994 through November 1995expired after one year, and, because Act No. 93-382 did not include a holdover provision, that Morgan is not entitled to hold that office "until [his] successor is elected and qualified"; and 3) to declare void that portion of § 11-3-20 providing for the chairman of the county commission to determine the outcome of matters "where the commission is divided," because Act No. 93-382 did not give tie-breaking authority to the commission chairman.
The Alleged Conflict Between Act No. 89-783 and Act No. 93-382
Act No. 89-783, enacted pursuant to Constitutional Amendment 503, separated the office of judge of probate from the office of chairman of the Pike County Commission; provided for the compensation, duties, and authority to be given the commission chairman; set out the qualifications for the commission chairman; and set out the procedures for electing a commission chairman ("shall be elected by the qualified electors of the county at the general election"). Section 3 of the act provided that the commission chairman was to "hold office for a term of four years ... and until his successor is elected and qualified."
According to its title, Act No. 93-382 was enacted to "provide for the election and compensation of the Chair of the Pike County Commission." Although it provided for the annual election of a commission chairman and specifically stated that "[n]othing in this act shall be construed to prevent a chair of the commission from seeking consecutive terms," Act No. 93-382 did not contain the holdover language of previous acts allowing a commissioner (§ 11-3-1) or the chairman (Act No. 89-783) to remain in office "until his *428 successor is elected and qualified." However, we do not conclude that this "omission" resulted in the repeal of the holdover language of the previous acts.
The petitioners contend that the lack of holdover language in Act No. 93-382 makes the holdover language in Act No. 89-783 "repugnant" to the later enactment's provision limiting the term of the commission chairman to one year. Therefore, say the petitioners, under § 4 of the 1993 Act, the 1989 Act's holdover language has been repealed.
Benson v. City of Birmingham, 659 So. 2d 82, 86 (Ala.1995). Therefore, a better analysis of a reading of these acts together is guided by the following principle:
Norman J. Singer, Sutherland Statutory Construction § 22.30, p. 267 (5th ed.1993).
The holdover language in the 1989 Act was in addition to the language specifying the term of four years for commission chairman. Nothing in the 1993 Act indicates that the legislature intended to repeal the additional holdover provision by changing the commission chairman's term from four years to one year. Further, leaving the commission without a chairman until a successor chairman can be "elected and qualified" can cause unnecessary confusion among the commission members and damaging delays in county business.
The omission of the holdover language in the 1993 Act does not act as an "implied repeal" of that provision. A correct interpretation of the two acts, read in pari materia, is that Act No. 93-382 shortened the term of office of the chairman of the Pike County Commission, but left intact the holdover provision of Act No. 89-783 allowing a commission chairman to remain in office "until his successor is elected and qualified." Therefore, we deny the petitioners the relief they seek with regard to the conflict they allege exists between Act No. 89-783 and Act No. 93-382, and we hold that there has been no repeal, express or implied, of the "holdover" language of Act No. 89-783.
The Alleged Conflict Between § 11-3-20 and Act No. 93-382
The petitioners' second argument for the issuance of the writ of mandamus is that the trial court, by holding that § 11-3-20 is valid and applicable and thus allowing the commission chairman to resolve a deadlocked commission vote, has, in effect (and without authority), directed the outcome of the deadlocked vote for chairman of the Pike County Commission. This, say the petitioners, is an absurd result and is an abuse of the trial court's discretionthey say the court attempted to exercise authority that it does not have (i.e., authority to appoint the new chairman of the Pike County Commission).
Norman J. Singer, Sutherland Statutory Construction § 45.11, p. 61 (5th ed.1993).
From 1852 to 1989, the judge of probate, as the "principal judge" of the Pike County Commission, could vote only in case of a vote deadlock among the Pike County commissioners. In 1989, pursuant to Const. Amend. 503 and Act No. 89-783, the chairman of the Pike County Commission was elected by the voters of Pike County to preside over the commission and to assume the responsibilities theretofore given to the judge of probate. The chairman elected pursuant *429 to the 1989 act, in the same manner as the judge of probate, voted only in the case of a commission vote deadlock. Act No. 93-382, however, amended the procedure for electing a commission chairman, so as to provide that the chairman would be selected by and from the six-member commission.
The conflict alleged by the petitioners illustrates the unjust and absurd result of giving effect to both Act No. 93-382 and § 11-3-20. Any vote deadlock among the six commissioners is now to be determined by the vote of a commission chairman who has already voted on the matter as a commissioner. When both the 1993 act and the 1989 act are given full effect, the chairman is entitled to a second vote in any matter upon which the commission is evenly divided; thus, the business of the Pike County Commission is rendered subject to the whim and control of the current commission chairman. This cannot be the outcome envisioned by the legislature in enacting Act No. 93-382.
There is a clear repugnancy between § 11-3-20 and the later local act, Act No. 93-382. However, this Court has written:
Stokes v. Noonan, 534 So. 2d 237, 239 (Ala. 1988).
Section 11-3-20 begins with these words: "Unless otherwise provided by local law." Section 4 of Act No. 93-382 (the local law) states, "All laws or parts of laws which conflict with this act are repealed." With respect to Pike County, Act No. 93-382 is the more recent and more specific statement on the subject of the election, compensation, and term of office for the chairman of the Pike County Commission.
Section 11-3-20, when construed in pari materia with Act No. 93-382, gives the Pike County Commission chairman a second vote and effectively predetermines the outcome of "all matters where the county commission is divided." Therefore, that "part" of § 11-3-20 that provides "In all matters where the county commission is divided, the same must be determined by the chairman of the county commission" is repealed, leaving the Pike County Commission without a procedure for breaking a vote deadlock among the commissioners. The relief given the petitioners regarding the alleged conflict between § 11-3-20 and Act No. 93-382a declaration that the deadlock resolution procedure of § 11-3-20 is repealedis granted.
The effect of our holding with regard to the second conflict, however, leaves the Pike County Commission without a procedure for determining "matters where the county commission is divided." This, however, is a matter that must be addressed and resolved by the legislature.
To summarize, then, we hold 1) that as to the alleged conflict between Act No. 89-783 and Act No. 93-382, there has been no repeal of the "holdover" language of Act No. 89-783 and the holdover provision in Act No. 89-783 must be applied together with the provisions of Act No. 93-382; and 2) that that portion of § 11-3-20 authorizing the commission chairman to determine vote deadlocks among the commission members and Act No. 93-382, providing for the election of the commission chairman from the commission membership, are repugnant and that, because the more recent local act must control, the deadlock resolution procedure of § 11-3-20 is repealed as it relates to Pike County.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT GRANTED.
HOOPER, C.J., and SHORES, J., concur.
KENNEDY, J., concurs in the result.
HOUSTON, J., concurs in part and concurs in the result in part.
MADDOX, J., concurs in part and dissents in part.
*430 HOUSTON, Justice (concurring in part and concurring in the result in part).
I concur in that portion of the opinion designated "The Alleged Conflict Between Act No. 89-783 and Act No. 93-382."
I concur in the result only as to that portion of the opinion designated as "The Alleged Conflict Between § 11-3-20 and Act No. 93-382."
MADDOX, Justice (concurring in part and dissenting in part).
It appears to me that the trial court correctly interpreted the statutes in question. Therefore, I respectfully dissent as to that portion of the opinion holding to the contrary. Otherwise, I concur.
[1] The petitioners filed an appeal in this Court (Meeks v. Morgan, docket no. 1950579). Determining that the declaratory judgment order was interlocutory, this Court remanded the case to allow the trial judge to enter a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The trial court did not enter a final judgment, and the appeal was dismissed. See Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984).
[2] Petitioners in this Court. The briefs often refer to the parties as "petitioners" and "respondents," but the briefs base these references on the parties' positions in the declaratory judgment action in the circuit court.
[3] As was noted earlier, § 11-3-20 provides, in part, that "[i]n all matters where the county commission is divided, the same must be determined by the chairman of the county commission." | September 6, 1996 |
c2c8680b-709e-4734-a7cf-6daef265916a | Millard v. Millard | 683 So. 2d 1002 | 1950926 | Alabama | Alabama Supreme Court | 683 So. 2d 1002 (1996)
Ex parte Dan Fenton MILLARD.
(Re Ana Paula MILLARD v. Dan Fenton MILLARD).
1950926.
Supreme Court of Alabama.
September 6, 1996.
Ian F. Gaston of Gaston & Gaston, Mobile, for Petitioner.
Virginia W. Haas, Mobile, for Respondent.
PER CURIAM.
In March 1991, the parties were divorced pursuant to an agreement, the terms of which were incorporated into the judgment of divorce. The divorce judgment required the husband to pay the wife $4,000 in child support each month, that amount to be reduced by a proportionate share as each child reached 19 years of age. The husband was also to pay $3,500 in alimony per month until the wife remarried or cohabited. In August 1994, the husband filed a motion for the reduction of his support obligations, alleging that his income had been substantially reduced and that the needs of his wife had substantially decreased. The wife counterclaimed, requesting an increase in child support and alimony. The trial court granted the husband's motion to reduce alimony, reducing it to $2,500 per month. The wife appealed.
The Court of Civil Appeals reversed the judgment of the trial court and ordered that the original award be reinstated. Millard v. Millard, 683 So. 2d 999 (Ala.Civ.App.1996). The Court of Civil Appeals' opinion recognized that the husband had experienced a decrease in his earnings because an increase in the number of partners in his medical partnership had decreased the amount of each partner's share of the profits and because tax law changes lowered the husband's net income. The Court of Civil Appeals wrote:
Millard, 683 So. 2d at 1001 (emphasis added).
The husband argues that the Court of Civil Appeals' opinion is contrary to prior decisions of this Court and the Court of Civil Appeals stating that an appellate court should not substitute its judgment for that of the trial judge.
567 So. 2d at 868. See also Paajanen v. Paajanen, 600 So. 2d 293 (Ala.Civ.App. 1992), and Brown v. Brown, 586 So. 2d 919 (Ala.Civ.App.1991).
"Thus, when this Court or the Court of Civil Appeals reviews a circuit court's order, it is not to substitute its judgment of the facts for that of the circuit court. Rea v. Rea, 599 So. 2d 1206 (Ala.Civ.App.1992). Instead, our task is simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion. Peterman v. Peterman, 510 So. 2d 822 (Ala.Civ.App.1987)."
Ex parte Smith, 673 So. 2d 420, 421-22 (Ala. 1995).
The evidence before the trial court supports its modification order; thus, the trial court did not abuse its discretion. In the trial court, the husband presented testimony that he had had a decrease in income of between 18% and 20% The trial court, after hearing two days of testimony, considered this decrease sufficient to constitute a material change in circumstances.
Based on Ex parte Smith, supra, and other cases applying the ore tenus rule, we reverse and remand.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. | September 6, 1996 |
85526510-c72c-494a-a016-4fd4ad4441f3 | Ex Parte Payne | 683 So. 2d 458 | 1941815 | Alabama | Alabama Supreme Court | 683 So. 2d 458 (1996)
Ex parte Max Landon PAYNE.
(Re Max Landon Payne v. State).
1941815.
Supreme Court of Alabama.
August 2, 1996.
Rehearing Denied October 18, 1996.
*459 Larry Collins, Cullman, for Petitioner.
Jeff Sessions, Atty. Gen., and Cedric B. Colvin, Asst. Atty. Gen., for Respondent.
KENNEDY, Justice.
Max Landon Payne was convicted on three counts of capital murder (all relating to one killing): count one charged Payne with intentional murder committed during an abduction with the intent to accomplish or aid the commission of robbery or flight therefrom, pursuant to § 13A-5-40(a)(1), Ala.Code 1975; count two charged Payne with intentional murder during an abduction with the intent to inflict serious physical injury, pursuant to *460 § 13A-5-40(a)(1); and count three charged Payne with intentional murder during a robbery in the first degree, pursuant to § 13A-5-40(a)(2). After the sentencing phase of the trial, the jury recommended the death penalty. The trial court accepted the recommendation and sentenced Payne to death. The Court of Criminal Appeals affirmed the conviction and death sentence. Payne v. State, 683 So. 2d 440 (Ala.Crim.App.1995).
Payne raises four issues on appeal: (1) Did the Court of Criminal Appeals correctly hold that certain comments made by the prosecutor during closing arguments did not infringe upon Payne's right to remain silent? (2) Did the trial court err in failing to give certain jury charges requested by Payne? (3) Was Payne denied his right to a speedy trial? and (4) Did the trial court commit reversible error by admitting evidence obtained during what Payne says was an illegal search of his automobile?
The Court of Criminal Appeals set out the facts in its opinion. However, we feel it necessary to recite the facts as stated by that court in order to better present the issues.
683 So. 2d at 443-47.
Payne argues that comments made by the State in its closing arguments prejudiced him; he contends they were directed at his constitutional right not to testify. He says the comments by the State led the jury to believe that people are more likely to be innocent if they themselves testify rather than rely on the testimony of other persons. The State argues that the comments, taken in the context of the entire closing arguments, do not constitute reversible error.
The United States Supreme Court held in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), that a prosecutor's direct comment on the defendant's failure to testify violates the defendant's rights under the Fifth and Fourteenth Amendments to the United States Constitution. Also, an indirect statement, one of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify, violates the defendant's constitutional rights. Marsden v. Moore, 847 F.2d 1536 (11th Cir.), cert. denied, 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988). Also, such a statement violates the defendant's rights under the Alabama Constitution. Beecher v. State, 294 Ala. 674, 320 So. 2d 727 (1975).
Because Payne did not object at trial to the comments he now complains of, we must review the statements under the plain error rule and take appropriate action if plain error is evident, even though the error was not complained of at trial. Rule 45A, A.R.App. P.; Powell v. State, 631 So. 2d 289 (Ala.Crim. App.1993). The plain error rule requires not only that the claimed error seriously affected substantial rights of the defendant, but also that the error had an unfair prejudicial impact on the jurors' deliberations. United *465 States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
At trial, Payne's defense was that a man named James Beavers committed the crime. In discussing this defense, the prosecutor asked the jury to compare the evidence against Beavers with the evidence that Payne committed the murder:
R.T. 747 (emphasis added).
We note that defense counsel's failure to object to these comments does not prevent our review. However, the failure to object should be weighed as part of our evaluation of the comments, because the failure to object may suggest that the defense did not consider the comments to be particularly harmful. Ex parte Kennedy, 472 So. 2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985).
We agree with the Court of Criminal Appeals that United States v. Chandler, 996 F.2d 1073, 1094-95 (11th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2724, 129 L. Ed. 2d 848 (1994), is persuasive regarding the interpretation of the prosecutor's comments. In Chandler, the court reviewed the prosecutor's statement that the defendant, Chandler, was more culpable than one of his cohorts, Charles Ray Jarrell, who testified for the prosecution. In that argument, the prosecutor made the following comments:
Id. at 1094 (emphasis added).
In reviewing these remarks, the court stated:
Id. at 1095.
Based on the foregoing, we hold that the prosecutor's comment did not constitute an impermissible comment on Payne's right to remain silent. The comment, read in context, was not a direct or indirect comment on Payne's failure to testify. A jury would not naturally and necessarily infer that this was a comment on Payne's failure to testify. *466 Rather, it was a summation of the defense's case versus the evidence presented by the State, Payne's defense being that someone else killed Brown.
This case is similar to Dill v. State, 600 So. 2d 343 (Ala.Crim.App.1991), aff'd, 600 So. 2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993), wherein the prosecutor stated that the defendant's brother was the only one from whom the jurors had heard; the statement was held not to be a comment on the defendant's silence. The comment, read in context, was that the defendant's brother, who testified for the prosecution, was the only one who told the truth. The prosecutor then went through a lengthy summation of the testimony that supported the brother's testimony. This was made in response to defense counsel's closing argument, which had attacked the brother's credibility; the comment was held not to amount to plain error.
Payne argues that the following comments by the prosecutor were also an impermissible reference to his right not to testify:
R.T. 755-57. (Emphasis added.)
As with the earlier comments, Payine's counsel apparently did not find these statements to be particularly harmful, because he did not object. Again, we must review them under the plain error rule and weigh the lack of an objection as part of our evaluation of the comments.
Before making these comments, the prosecutor told the jury that witnesses had been presented by both sides and that it was the jury's duty to determine which, if any, statements made by a witness it believed. He also told them that in closing arguments both sides may make inferences from the evidence and that the jury could agree or disagree with those inferences. He also stated that it was the prosecutor's job to re-create through the testimony of witnesses what the circumstances were on the day of the murder. He also for some of his argument uses the term "we," e.g., "we assume that ..." and "there's no way we could rebut that." As for the use of the word "we," the prosecutor was referring to the fact that more than one prosecutor tried the case.
Viewing the comments Payne claims are improper in light of earlier comments made by the prosecutor during closing arguments, we conclude that no error occurred. The prosecutor was merely summarizing the case and commenting on inferences from the evidence presented. That is, the prosecutor was merely commenting that even though the prosecution had not been able to reconstruct every event of the evening, one could reasonably infer from the evidence presented that Payne was guilty.
*467 It is well settled that the State can comment on the fact that its evidence is uncontradicted or has not been denied. Ex parte Wilson, 571 So. 2d 1251 (Ala.1990); Ex parte Williams, 461 So. 2d 852 (Ala.1984). However, the prosecutor cannot make comments that invade the right of the defendant not to testify. Id. We hold that the prosecutor's comments did not invade that right.
Also, we note that in his closing arguments Payne's counsel used these same inferences drawn from the prosecutor's inability to reconstruct every event of the evening. He commented on the fact that the State did not know what had happened on the bridge and did not prove what happened, or who did what, to the victim. He also commented on what Beavers could have been doing at the time at which the State says the jury could infer that Payne was committing the murder. Payne's counsel stated that the State said "maybe this happened or maybe that happened," but that a guilty verdict was "too important to be based on speculation."
Payne requested the following jury instruction:
The court denied this charge and instructed the jury, in pertinent part, as follows:
R.T. 815-17 (emphasis added).
Payne argues that "inference," as that term is used in the court's jury charge, does not mean substantially the same as "hypothesis," as used in Payne's requested jury charge. The State contends that there was no need for the trial court to give the jury charge requested by Payne because, it argues, the charge given by the trial court substantially covered the same subject matter.
We agree with the statement of the Court of Criminal Appeals that "the state is not asked to eliminate every single hypothesis inconsistent with the defendant's guilt," rather "only such hypotheses as are reasonable, springing from a consideration and comparison of the entire evidence." 683 So. 2d at 452, quoting Crawford v. State, 112 Ala. 1, 21 So. 214 (1896), and Cox v. State, 373 So. 2d 342, 345 (Ala.Cr.App.1979).
*468 Black's Law Dictionary 743 (6th ed.1990), defines "hypothesis" as "A supposition, assumption, or theory; a theory set up by the prosecution, on a criminal trial, or by the defense, as an explanation of the facts in evidence, and a ground for inferring guilt or innocence, as the case may be, or as indicating a probable or possible motive for the crime." (Emphasis added.)
In support of his argument, Payne cites Ex parte Smiley, 655 So. 2d 1091 (Ala.1995), for the proposition that the judge should have used the word "hypothesis" rather than "inference." However, Smiley differs from this case in that it did not address a jury charge; rather it addressed the sufficiency of the evidence in a murder case. We stated in Smiley that a person's presence at the scene of a crime is not enough to justify a conviction for the crime, but that the person's presence at the scene, taken along with other facts and circumstances tending to connect that person with the crime, may be enough to support a conviction. 655 So. 2d at 1094. We also set out in Smiley the applicable test:
655 So. 2d at 1094. (Emphasis added.) The test in Smiley states that an inference or a hypothesis of innocence must be a reasonable one.
The refusal of a requested written instruction is not a cause for reversal, even if the requested charge is a correct statement of the law, so long as it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in other charges given at the request of the parties. Rule 21.1, Ala.R.Cr.P.; Marek v. State, 556 So. 2d 383 (Ala.1989) (if requested charge is subsumed in the court's oral charge, the refusal of the charge is not error under Rule 14, Temp. Ala.R.Cr.P.).
We hold that the charge given in this case did substantially and fairly state the same rule of law that was stated in the charge Payne requested. In summary, the trial court's charge refers to the use of circumstantial evidence in the case; it clearly indicates that the State must prove its case beyond a reasonable doubt; and, finally, it states that the defendant cannot be convicted if the evidence leads to an inference consistent with innocence.
Payne argues that he was denied his Sixth Amendment right to a speedy trial because there was a 25-month delay between his indictment and his trial. Payne contends that the Court of Criminal Appeals erred in its application of the following factors set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), for a court to consider when analyzing a speedy-trial claim: (1) the length of the delay; (2) reasons for the delay; (3) when the defendant asserted his right to a speedy trial; and (4) any prejudice that the defendant has suffered because of the delay.
Payne argues that the court erred in weighing the Barker factors by not including in the "length of the delay" the six months it took to "find a judge to hear the case." He contends that the six months that passed between the retirement of one judge and the appointment of another should have been weighed against the State.
The procedural history of Payne's case is as follows:
March 25, 1992Payne was arrested in Dade County, Florida. (C.R.49.)
April 16, 1992Payne was indicted by a Cullman County grand jury on three counts of capital murder. (C.R.2.)
April 22, 1992Payne made his initial appearance in court. (C.R.3-4.)
April 29, 1992Payne moved to dismiss the indictment. (C.R.17-18.)
April 30, 1992Payne filed 4 motions: (1) a motion to compel the state to elect whether to proceed on the first, the second, or the *469 third count of the indictment; (2) another motion to dismiss the indictment; (3) a petition for psychiatric evaluations to determine his competency at the time of the offense and his competency to stand trial; and (4) a motion to vacate the State's discovery order and for a protective order, requesting that the State be prohibited from taking hair, blood, saliva, and urine samples. (C.R.20-30.)
May 6, 1992Payne moved for a continuance on his motion for psychiatric evaluations, which was scheduled to be heard on May 7, 1992; Payne moved for a change of venue and requested a hearing on this issue. (C.R.34-35.)
May 7, 1992Payne filed an ex parte application for investigative expenses, requesting a hearing on the issue; Payne also moved for permission to file other motions. (C.R.38-48.)
May 8, 1992Payne moved to suppress his statement and requested a hearing on this issue. (C.R.49-54.)
May 13, 1992Payne moved to suppress certain physical evidence and requested a hearing on this issue. (C. 55-58.)
May 14, 1992Payne moved to continue the trial, which was set for May 18, 1992. (C.R.59-59A.)
June 10, 1992Payne moved to continue the the psychiatric evaluation and change of venue hearings. (C.R.60-61.)
July 15, 1992Payne again moved to continue the hearings on the psychiatric evaluation and change of venue. (C.R.62-63.)
September 3, 1992The hearing on Payne's motion for psychiatric evaluation and change of venue was held. The trial court ordered psychiatric evaluations for Payne and denied the change of venue motion. (Supp.vol.3, 1-84.) (C.R.64-65.)
October 26, 1992The trial court found Payne competent to stand trial and set trial for December 14, 1992. (C.R.66-67.)
November 30, 1992Payne requested to individually voir dire the jury and to sequester those who had been questioned individually from those who had not. (C.R.68-80.)
December 1, 1992The State moved to continue the trial, which was set for December 14, 1992, because the blood-type analysis had not been completed. (C.R.81-82.)
December 17, 1992Payne moved for a pretrial determination of the admissibility of certain evidence, specifically requesting a hearing 60 days before trial. (C.R.85-86.)
December 18, 1992The trial court set a hearing for a pretrial determination of the admissibility of evidence, for January 7, 1993. (C.R.210.)
January 7, 1993At the hearing, the trial court ordered the State and Payne to file briefs on the legal issues presented regarding the admissibility of certain evidence. (Supp.vol.4, pp. 1-205.) (C.R.208.)
January 20, 1993The State moved to extend the time for filing the requested briefs. (C.R.87-88.)
January 21, 1993The trial court extended the time to file briefs, to February 10, 1993. (C.R.208.)
February 5, 1993Payne moved to further extend the time for filing briefs; the trial court extended the time to March 10, 1993. (C.R.89-90, 208.)
March 19, 1993The State moved to continue the trial, which had been set for March 22, 1993, because DNA testing had not been completed. (C.R.90-91.)
March 25, 1993The trial court denied Payne's motion to suppress his statement and certain evidence seized from his automobile. (C.R.97-98.)
April 10, 1993Payne petitioned the Court of Criminal Appeals for a writ of mandamus, challenging the trial court's denial of his motion to suppress his statement and evidence seized from his car. (C.R.208.)
April 12, 1993Payne filed an ex parte request for investigative expenses. (C.R.91-97.)
April 13, 1993The trial court granted Payne's request for investigative expenses. (C.R.211.)
April 23, 1993The Court of Criminal Appeals denied Payne's petition for the writ of mandamus. Ex parte Payne, 626 So. 2d 651 *470 (Ala.Crim.App.1993); Payne petitioned this Court for a writ of mandamus. (C.R.97-98.)
May 14, 1993Payne moved for a continuance pending this Court's ruling on the mandamus petition. (C.R.99-100.)
June 9, 1993the trial court continued the trial, pending this Court's review of Payne's petition and pending resolution of Payne's motion concerning out-of-state witnesses. (C.R.101-02.)
June 14, 1993This Court denied the writ of mandamus. (C.R.103.)
August 30, 1993Payne moved for production of witnesses, an incarcerated person; he also petitioned for certification of the materiality of out-of-state witnesses. (C.R.103-108.)
September 10, 1993The presiding judge in the circuit denied both of the motions filed on August 30, 1993, noting that the trial date had not been set, because of the retirement of Judge Riley. (C.R.108-09, 211.)
November 10, 1993Payne moved for a speedy trial. (C.R.112.)
November 12, 1993Payne again moved for production of witnesses and a certification of materiality of out-of-state witnesses. (C.R. 113-19, 122.)
January 12, 1994Newly appointed Circuit Judge Frank Brunner recused because he had previously been appointed guardian ad litem for the victim's minor daughter. (C.R. 211.)
January 14, 1994Payne again moved for a speedy trial. (C.R.124-25.)
January 24, 1994The presiding circuit judge recused because he had just had surgery and was still recuperating. (C.R.211.)
January 25, 1994The presiding circuit judge notified the Chief Justice of this Court of his recusal and requested that the case be assigned to another circuit judge. (C.R.126.)
January 28, 1994Payne filed a motion for the court to reconsider all previously filed motions. (C.R.127.)
February 3, 1994This Court entered an order appointing Judge Robert Austin to hear the case. Judge Austin set a pretrial conference for February 14, 1994. (C.R.129-130.)
February 14, 1994Payne made a motion in limine. (C.R.131-34.)
March 7, 1994Payne moved to dismiss the indictment, alleging a failure to give him a speedy trial. (C.R.136-38.)[1]
March 11, 1994The motion to dismiss was denied and trial was set for May 23, 1994. (C.R.138-39.)
May 3, 1994Payne moved for production of witnesses and a certification of the materiality of an out-of-state witness, for the third time. (C.R.140-143.)
May 23, 1994The trial began. (R.T. 1.)
The Court of Criminal Appeals held that the delay of 25 months between indictment and trial was not presumptively prejudicial, because much of the delay was due to the problem of finding a judge to hear the case. That court wrote, "This delay is not attributable to either the prosecution or Payne." 683 So. 2d at 452. The court reviewed the remaining Barker factors and found no violation of Payne's right to a speedy trial.
Payne contends that the Court of Criminal Appeals should have weighed against the State the delay due to the problem of finding a judge to hear the case. The United States Supreme Court has written:
Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
We must consider the Barker factors. There were 25 months between indictment *471 and trial. There were several reasons for the delay of the trial: From Payne's April 16, 1992, indictment to the first setting of trial for May 18, 1992Payne filed at least 9 motions, including a motion for a continuance. From June 10, 1992, to September 3, 1992, Payne filed several motions, including a motion for a psychiatric evaluation and for a hearing on that motion. On October 6, 1992, the trial court found Payne competent to stand trial and set trial for December 14, 1992. On December 1, 1992, the State made its first motion for a continuance. On December 17, 1992, Payne moved for a pretrial hearing on whether to suppress certain evidence. The requested hearing was set for January 7, 1993.
At the hearing, the trial court ordered the parties to file briefs. Subsequently, both the State and Payne requested additional time to file their briefs. On March 19, 1993, the State moved for a continuance because DNA testing was not complete. On March 25, 1993, the trial court denied Payne's motion to suppress. In April 1993, Payne asked for investigative funds, which the trial court granted. Also in April, Payne petitioned the Court of Criminal Appeals for a writ of mandamus regarding the suppression issue. The writ was denied on April 23, 1993. Payne then petitioned this Court for a writ of mandamus regarding the suppression issue. On May 14, 1993, Payne moved for a continuance pending this Court's ruling on the mandamus petition. The trial court granted the continuance on June 9, 1993. On June 14, 1993, this Court denied the writ.
The delay caused by the retirement of one judge and the recusal of two others began in September 1993 and ended on February 3, 1993, when this Court appointed a judge to hear the case. On September 10, 1993, the presiding circuit judge denied two of Payne's motions regarding witnesses because the trial judge sitting on the case had retired. Two months later, on November 10, 1993, Payne moved for a speedy trial. Until November 1993-19 months after the indictment Payne had not asserted his right to a speedy trial. On November 12, 1993, Payne filed another motion regarding witnesses.
The next action in the case occurred on January 12, 1994, when a new judge was appointed for the circuit in which Payne had been indicted. That same day, the new judge recused, because of a conflict of interest arising from the fact that he had been guardian ad litem for the victim's minor daughter. On January 14, 1994, Payne again moved for a speedy trial. On January 24, 1994, the presiding judge in the circuit recused because of health problems. On January 25, 1994, he notified the Chief Justice of his recusal, and on February 3, 1994, this Court appointed another judge to hear the case. On that same day, the trial judge set a pretrial hearing for February 14, 1994. On March 7, 1994, Payne filed a motion to dismiss, alleging a denial of a speedy trial[2] that motion was denied on March 11, 1994. The trial began on May 23, 1994.
Payne contends that it should be presumed that he suffered some prejudice by the 25-month delay. He argues that there was no need for him to present any evidence of prejudice, arguing that under Barker a showing of prejudice comes from the fact of "pretrial incarceration" and from witnesses'"loss of memory" occurring because of the length of time, citing Barker 407 U.S. at 532, 92 S. Ct. at 2193.
Whether a defendant has been denied the constitutional right to a speedy trial cannot be determined by an inflexible rule, but must be determined on a case-by-case basis. In determining that question, a court must weigh the conduct of the prosecution and the conduct of the defense. Barker, 407 U.S. at 530, 92 S. Ct. at 2191-92.
Looking at the Barker factors and the facts presented in this case, we cannot say that Payne was denied his right to a speedy trial. Weighing any presumed prejudice from the 25-month delay and attributing to the State the 6-month delay caused by the lack of a trial judge, we must conclude that Payne was not denied a speedy trial. It is *472 undisputed that Payne did not assert his right to a speedy trial until 19 months after the indictment had been filed. The State did not purposefully attempt to delay the trial, and any delay caused by the lack of a judge should be weighed less heavily against the State than a purposeful delay, according to Barker.
In weighing any prejudice Payne might have suffered, we consider the interests the right to a speedy trial was designed to protect, i.e., preventing oppressive incarceration, minimizing the defendant's anxiety, and, most important, limiting the possibility that the defense will be impaired. Barker. Because Payne presented no specific incidents of prejudice or impairment to his defense, we have looked at any presumed prejudice to Payne. Although between the indictment and the trial Payne spent 25 months in jail and certainly was anxious as to the outcome of his case, we cannot say that this alone is enough to outweigh the other factors. Payne contends that witnesses' loss of memory also prejudiced him. However, Payne does not point to any specific witness who failed to remember the events of the alleged offense. Even presuming some prejudice based on loss of memory as loss of memory, given that loss of memory is rarely reflected in the record, we cannot say that this factor would outweigh the other factors. We note that the State's case would also be affected by witnesses' loss of memory occurring because of the delay in trial; however, this loss of memory can work to the defendant's favor.
We hold that the Court of Criminal Appeals did not err in determining that Payne was not denied his right to a speedy trial.
We agree with the reasoning of the Court of Criminal Appeals on this issue, and we adopt it as our own:
The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, INGRAM, COOK, and BUTTS, JJ., concur.
[1] In his motion to dismiss filed March 7, 1994, Payne claims that he first asserted his right for a speedy trial in "July 1993." However, nothing in the record indicates that to be the case; Payne does not dispute, in his briefs to this Court, that his first motion for a speedy trial was filed on September 20, 1993.
[2] The Court of Criminal Appeals stated that Payne filed his third speedy trial motion on February 14, 1994. 683 So. 2d at 451. However, the record indicates that it was filed on March 7, 1994, and Paine does not dispute this. | August 2, 1996 |
c44d8957-e671-41c6-ad73-3abb374807a7 | Ex Parte Northport Health Service, Inc. | 682 So. 2d 52 | 1950849 | Alabama | Alabama Supreme Court | 682 So. 2d 52 (1996)
Ex parte NORTHPORT HEALTH SERVICE, INC., d/b/a Oak Knoll Nursing Home, a/k/a Estes Oak Knoll.
(In re Terrill Sanders, administrator of the Estate of Pearl Smith, deceased v. NORTHPORT HEALTH SERVICE, INC., et al.).
1950849.
Supreme Court of Alabama.
July 19, 1996.
*53 Thomas Coleman, Jr. of Smith, Spires & Peddy, P.C., Birmingham, for Petitioner.
Tyrone C. Means and Mark Englehart of Thomas, Means & Gillis, P.C., Montgomery, for Respondent.
Richard J. Brockman and R. Marcus Givhan of Johnston, Barton, Proctor & Powell, Birmingham, for Amicus Curiae Alabama Nursing Home Ass'n, Inc.
M. Christopher Eagan and Elizabeth S. Webb of Starnes and Atchison, Birmingham, for Amicus Curiae Medical Ass'n of State of Ala.
INGRAM, Justice.
Northport Health Service, Inc., d/b/a Oak Knoll Nursing Home a/k/a Estes Oak Knoll (hereinafter "Northport"), petitions for a writ of mandamus directing the trial judge to vacate a discovery order.
Terrill Sanders, as administrator of the estate of Pearl Smith, sued Northport, alleging breach of contract, negligence, and wrongful death. Sanders sought discovery of personnel documents, including disciplinary records and evaluations, and documents relating to "other acts" evidence, specifically, "evidence of acts of abuse, mistreatment or neglect of residents in the nursing home facilities other than those that resulted in the severe bruising, hospitalization and death of Pearl Smith." On January 3, 1996, the trial judge granted Sanders's motion to compel, with certain limited exceptions. After overruling Northport's "motion for reconsideration" and its motion for a protective order, the trial judge entered the following order on February 15, 1996:
Northport first asserts that the trial judge sua sponte declared § 6-5-551 unconstitutional, and that, therefore, the order is void because the attorney general had not *55 been properly served and afforded an opportunity to be heard.
The constitutional issue in this case is very similar to that presented in Ex parte St. Vincent's Hosp., 652 So. 2d 225 (Ala.1994), which, in fact, involved the same trial judge who entered the order complained of here. In St. Vincent's, the petitioner hospital argued that the trial judge's order declared certain Code sections unconstitutional. In his order in St. Vincent's, the trial judge stated:
652 So. 2d at 227. (Emphasis added.)
In St. Vincent's, this Court concluded that the trial judge "merely observed that if the statutes were construed to preclude all discovery, the statute[s] would `amount to unequal treatment under the law.'" 652 So. 2d at 227. Furthermore, this Court noted in St. Vincent's:
652 So. 2d at 228.
Assuming, but not deciding, that the trial judge ruled that § 6-5-551 is unconstitutional, we note that the attorney general was not served pursuant to § 6-6-227 and Rule 44, Ala.R.App.P. Therefore, any order holding § 6-5-551 unconstitutional is void.
We next must determine whether this case, in substance, is based on claims of malpractice and is therefore governed by the Alabama Medical Liability Act ("the Act").
In Ex parte Golden, 628 So. 2d 496 (Ala. 1993), citing Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.1984), this Court stated that the substance of an action, rather than its form, determines whether an action is a medical malpractice action and, therefore, controlled by the Act. Golden involved allegations that a dentist had made misrepresentations to a patient regarding the patient's medical condition. This Court held that although the plaintiff's claims were fraud-based, they were governed by the Act.
Furthermore, although Golden involved a patient-doctor relationship, a nursing home is, based upon § 6-5-481,[1] considered to be a "hospital" and thus, also is covered by the provisions of the Medical Liability Act.
Sanders claimed that employees of Northport's nursing home were abusive to Pearl Smith while she was a resident there. The substance of Sanders's complaint is that employees at the nursing home abused, mistreated, or neglected Ms. Smith. Sanders is attempting to discover evidence of "similar acts" as to other patients of the nursing home. The injuries alleged flow from the treatment or mistreatment of a patient in the nursing home. We conclude that this is a medical malpractice claim and that the Act applies.
Having concluded that Sanders's claim is a medical malpractice claim within the ambit of the Medical Liability Act, we now turn to the question whether § 6-5-551 prevents Sanders from seeking discovery of "similar acts" of abuse. The discovery sought in this case, and to which Northport objects, is essentially "pattern and practice" evidence. Section 6-5-551 provides:
(Emphasis added.)
As previously noted, in Golden this Court determined that the Act applied and that, based upon § 6-5-551, the plaintiff was barred from seeking discovery of "similar acts." Here, we have also determined that the Act applies. Therefore, we can conclude only that Sanders is barred from seeking discovery of "similar acts" evidence or "pattern and practice" evidence. Northport has shown that it has a clear legal right to the relief it requests. Therefore, the writ is due to be granted. The trial court is directed to limit discovery accordingly.
WRIT GRANTED.
HOOPER, C.J., and ALMON, HOUSTON, and KENNEDY, JJ., concur.
MADDOX, SHORES, and BUTTS, JJ., dissent.
[1] Section 6-5-481(7) refers the reader to § 22-21-21, stating that the term "hospitals" is defined in that section. Section 22-21-21 does not define "hospitals," but § 22-21-20 does; that section defines "hospitals" to include "long term care facilities such as, but not limited to, skilled nursing facilities, intermediate care facilities, homes for the aged, domiciliary care facilities and related health care institutions when such institution is primarily engaged in offering room, board, laundry and personal assistance with activities of daily living and incidentals thereto." | July 19, 1996 |
f647cde4-91cc-47ae-b308-3a15c6217b59 | Ex Parte Alabama Dept. of Human Resources | 682 So. 2d 459 | 1941413 | Alabama | Alabama Supreme Court | 682 So. 2d 459 (1996)
Ex parte ALABAMA DEPARTMENT OF HUMAN RESOURCES.
(Re L.W. and C.W. v. STATE DEPARTMENT OF HUMAN RESOURCES. In the Matter of H.W. and R.W., children under the age of eighteen years)).
1941413.
Supreme Court of Alabama.
September 6, 1996.
William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., Department of Human Resources, for Petitioner.
William P. Burgess, Jr., Huntsville, for Respondents.
*460 COOK, Justice.
We granted the petition of the Alabama Department of Human Resources (D.H.R.) for certiorari review, to determine whether the Court of Civil Appeals erred in reversing the trial court's judgment granting custody of two minor children to D.H.R. L.W. v. State Department of Human Resources, 682 So. 2d 453 (Ala.Civ.App.1995). After reviewing the record, we reverse the judgment of the Court of Civil Appeals and render a judgment affirming the judgment of the trial court.
Huntsville residents R.W. and G.W. married in 1987; three children were born to the union. The events that resulted in this case began in December 1993 after the death of the middle child, D.W., when she was 22 months old. The mother told authorities the girl had choked while eating sweet potatoes, but an autopsy indicated that the child's death had resulted from a fractured skull. Authorities investigating the death found evidence to support a finding of child abuse. Subsequently, the surviving children were taken from the home.
D.H.R. pursued temporary legal custody of the two surviving children, H.W. and R.W., who were four years old and 11 months old at the time. The children's paternal grandparents, L.W. and C.W., intervened in the case, seeking custody of the children. The trial court conducted a hearing with regard to custody and determined that the children's interests would be best served by placing them with D.H.R. rather than with the grandparents. The Court of Civil Appeals reversed, holding that the trial court had abused its discretion in reaching its decision.
The dispositive issue is whether the trial court abused its discretion by placing custody of the children with D.H.R. rather than with the paternal grandparents. Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court's findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So. 2d 232 (Ala.Civ.App. 1991); J.S. v. D.S., 586 So. 2d 944 (Ala.Civ. App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So. 2d 259, 261 (Ala. 1992). An appellate court will not reverse the trial court's judgment based on the trial court's findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So. 2d 1352 (Ala.1991).
The evidence presented at the custody hearing was conflicting. We must therefore determine whether the trial court's judgment was supported by the evidence. The trial court's order follows in relevant part:
The grandparents testified that they were in good health and believed they could take care of the children, although there was evidence, as set forth in the trial court's order, regarding medications being taken by the grandmother and regarding the grandfather's physical condition. The grandfather works and is away from the home approximately 10 hours per day; this fact means that the grandmother would face the challenge of handling the children each day alone. More than one witness testified that before D.W.'s death, the grandparents had kept H.W. and D.W. for an extended period. The witnesses were told that the grandparents were keeping the children to give the parents a break, but, in fact, the mother had been arrested for writing bad checks. After several months, according to the testimony, the parents told the witnesses the grandmother had called and asked that the parents come and pick up the children because she could not handle them. The grandparents did not present to the court any plan to employ household help or other assistance in handling the children. The grandparents have two grown children who live within 30 minutes' travel of their home. These children neither came to court nor sent to the court any evidence of a willingness to support their parents' efforts to gain custody of and to help care for their nieces. In light of this fact, the trial court could have reasonably found that the grandparents would be taking care of the children on their own and that doing so would be more than they could handle.
*463 There was other conflicting testimony. Several witnesses testified that the father of H.W. and R.W. told them that the childrens' paternal grandfather had abused alcohol and had been physically abusive to him and his brother. The grandfather denied drinking more than occasionally; he described his use of physical discipline as a "last resort" method that involved a "swat" to get the child's attention. The father of the children denied that he had ever said anything resembling what the witnesses testified he had said about his father.
Clinical child psychologist Dr. Patti Van Eys testified that H.W. showed no delight in seeing her family during visits with them after she was removed from her parents' home; that she had no problem parting company with them; that she initiated the departure; and that H.W. did not interact with her grandparents unless they initiated the contact. Dr. Van Eys described the grandparents as not demonstrating much warmth. She testified that H.W.'s lack of attachment to family members was underscored by her decision to sit with Dr. Van Eys after only a brief interaction with her mother and the grandparents and to seek her help in opening gifts from her grandmother. H.W. did this despite having met with Dr. Van Eys on only three prior occasions.
In addition, Dr. Van Eys testified that H.W. began calling the foster parents with whom she and her sister lived "mommy" and "daddy" immediately upon her placement with them. Within a matter of weeks, she progressed from the withdrawn, timid personality she had initially displayed to being a more active and vibrant child. The trial court could reasonably have found from this evidence that H.W. had adjusted well and had found a caring and nurturing environment.
The trial court in its order expressed concern for the physical security of the children if the natural parents had access to the children. This concern is certainly reasonable, given the evidence that the deceased child had suffered several skull fractures and given the mother's initial story that the child had choked on sweet potatoes. While the grandparents indicated they would cooperate with the court to the extent of not allowing the parents to visit with the children, the trial court expressed reservation. We can not say, given the circumstances of the death of D.W. and given the testimony of the grandparents, that this concern was unfounded. Although no one rebutted the grandparents' testimony that they would cooperate, the other evidence made it reasonable for the trial court to conclude that a conflict existed.
This evidence is sufficient to support the trial court's findings in this case. While the trial court's reservations about the ability of the Georgia Department of Family and Children's Services to monitor the grandparents and protect the children from their parents are speculative to some degree, the testimony, taken as a whole, sustains the trial court's judgment. The judgment of the Court of Civil Appeals is therefore reversed, and a judgment is rendered affirming the judgment of the trial court.
REVERSED AND JUDGMENT RENDERED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and INGRAM, JJ., concur.
BUTTS, J., dissents. | September 6, 1996 |
ee507dd2-e31b-4fb5-bb3e-831abb3aa8f2 | Ex Parte Gonzalez | 686 So. 2d 204 | 1951362 | Alabama | Alabama Supreme Court | 686 So. 2d 204 (1996)
Ex parte Kim GONZALEZ.
Re STATE of Alabama
v.
Kim GONZALEZ.
1951362.
Supreme Court of Alabama.
November 27, 1996.
*205 David Cromwell Johnson and Barry R. Tuggle, Law Offices of David Cromwell Johnson, Birmingham, and Hilda Trapp Smith, Florence, for petitioner.
Jeff Sessions, Attorney General, and Cedric B. Colvin, Assistant Attorney General, for respondent.
PER CURIAM.
Kim Gonzalez petitions this Court for a writ of mandamus ordering Judge John Jolly of the Franklin County Circuit Court to dismiss the capital murder indictment against her. We hold that she has failed to establish a clear legal right to the relief requested and, therefore, we deny the writ.
Gonzalez argues that the indictment should be dismissed because, she argues, the grand jury proceedings were so tainted by prosecutorial misconduct and ineffective assistance of counsel as to render the proceedings fundamentally unfair. She also argues that statements she made to police that were presented to the grand jury were illegally obtained and should not be used against her. Gonzalez moved to dismiss the indictment, but the trial court denied her motion. She then petitioned the Court of Criminal Appeals for a writ of mandamus requiring the trial judge to dismiss the indictment, but that court denied the writ, without an opinion. Ex parte Gonzalez, 678 So. 2d 1221 (Ala.Crim. App.1996) (table). Subsequently, Ms. Gonzalez petitioned this Court for a writ of mandamus.
The writ of mandamus is a drastic and extraordinary writ, to be issued only when there is a clear legal right to the relief sought, a duty upon the respondent to perform, a refusal to do so, lack of another adequate remedy, and properly invoked jurisdiction of the court. Ex parte Ziglar, 669 So. 2d 133 (Ala.1995). Generally, orders ultimately reviewable on appeal from a final judgment are not subject to review on a petition for the writ of mandamus. Ex parte Spears, 621 So. 2d 1255 (Ala.1993). However, there are a few exceptions wherein mandamus review is appropriate. See, e.g., Ex parte Crawford, 686 So. 2d 196 (Ala.1996) (mandamus proper to review denial of recusal motion); Ex parte Monk, 557 So. 2d 832 (Ala.1989) (mandamus proper to review discovery orders); Ex parte Rush, 419 So. 2d 1388 (Ala.1982) (mandamus proper to enforce right to jury trial).
The issue in this case is whether Kim Gonzalez has a clear legal right to have the capital murder indictment quashed.
In Ex parte Jackson, 614 So. 2d 405 (Ala. 1993), we issued a writ of mandamus ordering the trial court to dismiss a capital murder indictment because the State could prove no set of facts under which the defendant could have been convicted of capital murder. We held that even though upon a conviction and sentence of death the defendant would have had an automatic appeal to the Court of Criminal Appeals and certiorari review by this Court as a matter of right, allowing the State to proceed under the indictment would *206 result in a disruption of justice because there was no set of facts that would make the charged murder punishable as a capital offense. Notably, the State had leave to reindict the defendant under the appropriate provision of the Criminal Code, i.e., under the Code sections dealing with murder not punishable as a capital offense.
Because the writ of mandamus is an extraordinary writ and because it is rare to a murder indictment handed down by a grand jury, we consider the function of the grand jury to determine if mandamus relief would be appropriate here.
"The grand jury is an institution separate from the courts, over whose functioning the courts do not preside." United States v. Williams, 504 U.S. 36, 46, 112 S. Ct. 1735, 1742, 118 L. Ed. 2d 352 (1992). Rather, it serves as a kind of buffer between the government and the people. Williams. In Williams, the issue was whether a federal district court could dismiss an otherwise valid indictment because the Government had failed to disclose to the grand jury substantial exculpatory evidence in its possession. The Supreme Court held that requiring the prosecutor to present such exculpatory evidence would turn the grand jury, which has always been an accusatory body that sits to assess whether there is an adequate basis to bring an indictment, into an adjudicatory body sitting to determine guilt or innocence.
Unlike a court, which needs a case or controversy in order to have jurisdiction, the grand jury can investigate on a mere suspicion that a law is being violated or to assure that it is not being violated. United States v. R. Enterprises, 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991). The grand jury sits not to determine guilt or innocence, but to assess whether there is an adequate basis for bringing a criminal charge. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). In Calandra, a grand jury witness was questioned regarding evidence that had allegedly been obtained in violation of the Fourth Amendment. The Supreme Court refused to extend the exclusionary rule to grand jury proceedings, based on "potential injury to the historic role and functions of the grand jury." Calandra, 414 U.S. at 349, 94 S. Ct. at 620. The Double Jeopardy Clause of the Fifth Amendment is not violated when a grand jury returns an indictment even though a prior grand jury considering the same question did not do so. Williams, 504 U.S. 36, 112 S. Ct. 1735, 118 L. Ed. 2d 352, citing, Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L. Ed. 283 (1932). United States Supreme Court cases suggest that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if that person is the subject of the investigation. United States v. Mandujano, 425 U.S. 564, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976); In re Groban, 352 U.S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957).
With that in mind, we will address Gonzalez's arguments that the capital murder indictment should be quashed. First, she argues that the district attorney should not have testified at the grand jury proceeding as a witness when he had also appeared as a prosecutor in the proceeding. Second, she argues that her attorney should not have testified at the grand jury proceeding. Last, she argues that her statement made to the police was an involuntary statement and should not have been used at the grand jury proceeding.
Gonzalez argues that the district attorney should not have been allowed to testify as a witness in front of the grand jury because, she says, his testifying violated the Alabama Rules of Professional Conduct. However, Gonzalez does not cite a specific rule. She does quote the following from a 1979 federal district court case out of Illinois: "[A] prosecutor may not hasten the procuring of an indictment by testifying as a witness before the grand jury in a case s/he is prosecuting." United States v. Gold, 470 F. Supp. 1336, 1351 (N.D.Ill.1979).
First, we note that we are not bound by the statement in Gold. See, Weems v. Jefferson-Pilot Life Insurance Co., 663 So. 2d 905 (Ala.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 434, 133 L. Ed. 2d 348 (1995) (Alabama Supreme Court may rely on decisions of any federal court, but is bound only by *207 decisions of the United States Supreme Court). Second, the indictment in Gold was dismissed for multiple established indiscretions by the Government, only one of which was the dual employment of the attorney appointed by the Department of Justice to prosecute the case, who was also the chief investigator on the case for the Environmental Protection Agency and who while also acting as prosecutor testified to his findings as the chief investigator. Gold is also distinguishable from this case in that the attorney in Gold continued to prosecute the case for the Government after he had testified. In this present case, it is undisputed that the district attorney did testify at the grand jury proceeding. However, once the district attorney appeared before the grand jury as a witness, an assistant prosecutor then presented the remainder of the case to the grand jury. This Court will not create legal arguments for a party based on undelineated propositions. McLemore v. Fleming, 604 So. 2d 353 (Ala.1992). Accordingly, we conclude that Gonzalez has not shown a clear legal right to an order quashing the indictment on this ground.
Gonzalez also argues that her attorney should not have testified at the grand jury proceeding. She argues that her attorney testified against her, violating Gonzalez's attorney-client privilege. The State argues that at the hearing on the motion to dismiss Gonzalez did not argue that the attorney violated the attorney-client privilege and, therefore, that she is barred from raising it now. In response, Gonzalez claims that a motion to dismiss the indictment was made in open court and that this is sufficient to raise the issue. However, this is not sufficient to raise Gonzalez's specific argument concerning a violation of the attorney-client privilege. Assured Investors Life Insurance Co. v. National Union Assocs., Inc., 362 So. 2d 228 (Ala.1978) (failure to raise argument in trial court barred party from raising the issue in petition for the writ of mandamus). Therefore, Gonzalez has not shown a clear legal right to relief on this ground, either.
Assuming that Gonzalez had properly raised this argument in the court below, we cannot say the she would be entitled to mandamus relief on the merits of her argument. In order to show a violation of the attorney-client privilege, one must show that there was an attorney-client relationship, that the communications were within the privilege, and that prejudice would result if the communications were disclosed. Bassett v. Newton, 658 So. 2d 398 (Ala.1995). Gonzalez failed to show that the communications with her attorney were within the privilege.
Last, Gonzalez argues that she is entitled to have the indictment quashed on the grounds that her statements were illegally obtained in violation of the Fourth Amendment and should not have been presented to the grand jury. As we stated earlier, the United States Supreme Court has refused to extend the application of the exclusionary rule to grand jury proceedings. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561.
Based on the foregoing, we hold that Gonzalez has failed to show a clear legal right to an order quashing the indictment.
WRIT DENIED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, and COOK, JJ., concur. | November 27, 1996 |
7a547741-ac65-4733-82d4-6ab634849497 | Pfizer, Inc. v. Farsian | 682 So. 2d 405 | 1941153 | Alabama | Alabama Supreme Court | 682 So. 2d 405 (1996)
PFIZER, INC.
v.
Garshasb Hamid FARSIAN.
1941153.
Supreme Court of Alabama.
August 30, 1996.
James W. Gewin and Sid J. Trant of Bradley, Arant, Rose & White, Birmingham, for Appellant.
Roger L. Lucas and Steve Clem of Lucas, Alvis & Wash, P.C., Birmingham, and Elizabeth R. Jones, Birmingham, for Appellee.
*406 SHORES, Justice.
The United States Court of Appeals for the Eleventh Circuit has certified to this Court the following question, pursuant to Rule 18, Ala.R.App.P.:
Garshasb Farsian sued Shiley, Inc., and its parent corporation, Pfizer, Inc. (hereinafter collectively referred to as "Shiley"), alleging, among other things, that they had fraudulently induced Farsian to receive a Bjork-Shiley heart valve implant by not revealing to Farsian certain risks and defects. Shiley moved for a summary judgment, contending that because Farsian's valve was working properly, the claim should fail. Although the district court denied Shiley's motion, the court certified, pursuant to 28 U.S.C. § 1292(b), that the order involved a controlling question of law as to which there is substantial ground for difference of opinion, and the United States Court of Appeals for the Eleventh Circuit permitted an interlocutory appeal.
Farsian alleges that when his cardiologist recommended heart surgery in 1980 he discussed with Farsian two types of heart valves. According to Farsian, the doctor recommended Shiley's valve because, the doctor said, it was an outstanding valve and would never have to be replaced. The alternative, a pig valve, would wear out in 10 or 15 years and would have to be replaced.[1] Farsian asserts that he relied on information provided by his doctor and from Shiley indicating that Shiley's heart valve was the best on the market and would last indefinitely, and that, consequently, he chose to have Shiley's heart valve implanted.
Farsian now contends that he was misled. Farsian argues that during clinical trials in 1978, Shiley's heart valve experienced the first of many strut failures.[2] Farsian alleges that Shiley told the FDA that the failure was an anomaly. As of 1990, however, Shiley had reported a total of 295 fractures, resulting in 178 deaths.[3] Farsian contends that when he received Shiley's heart valve in 1981, Shiley was engaging in fraudulent conduct by marketing the valve despite knowing of serious manufacturing problems that directly related to the fracture problem in the valve. Farsian also contends that Shiley never informed him or his physician of the fracture problem before the implantation. Farsian argues that Shiley misled physicians and the public by understating the incidence of strut fractures in a "Dear Doctor" letter in 1980 and by instructing the valve's creator not to publish any information relative to strut fracture. Shiley removed some of these heart valves from the market in 1985; Farsian alleges that it did so under pressure from the Health Research Group and the FDA. It removed all remaining valves in 1986. Farsian asserts that he would not have allowed Shiley's valve to be implanted in his heart had he known of the strut fracture risk.
Farsian sued Shiley in an Alabama state court, alleging that Shiley had made intentional, reckless, or negligent misrepresentations about the fitness of the valve; that he *407 had relied on the representations; and that Shiley had known the representations to be false. Farsian also alleges that Shiley fraudulently concealed and withheld information from him and his medical providers regarding strut fracture with the intent to deceive, and he alleges that Shiley fraudulently induced him to have the Bjork-Shiley valve implanted. As a result of Shiley's conduct, Farsian contends, he has suffered damage to the extent that the implanted valve, with its higher rate of fracture and risk of death, is worth less than the valve would have been worth if it had been what Shiley represented it to be. Farsian also alleges that he has suffered mental anguish and emotional distress since he learned of Shiley's fraud. Moreover, he states that he wishes to undergo surgery to have the Shiley's valve removed and replaced, and he seeks remuneration for the expenses related to this procedure. Farsian also seeks punitive damages.
The case was removed from the state court to a federal court based on diversity of citizenship. Thereafter, Shiley moved for a summary judgment, contending that although Farsian alleges a risk of possible future malfunction of the valve, it is uncontroverted that Farsian's valve is and has been working properly. Shiley contends that Farsian is really asserting a product liability claim. Shiley asserts that under Alabama product liability law, a cause of action regarding an implanted medical device accrues only when an "injury-producing malfunction" occurs. According to Shiley, an allegation of fraud does not relieve the consumer from having to prove an injury-producing malfunction. Because Farsian has suffered no injury-producing malfunction, Shiley argues that Farsian's claim fails.
Farsian, however, maintains that his claim is based on fraud, not product liability. Farsian contends that, in Alabama, claims against manufacturers are not governed by a product liability law that subsumes all other theories of liability. Therefore, he argues that he may recover damages on his fraud claim even if he cannot prove that his valve is not working properly.
The question certified to this Court concerns whether Farsian may maintain a fraud claim under Alabama law. We conclude that he may not.
Regardless of how Farsian pleads his claim, his claim is in substance a product liability/personal-injury claimFarsian seeks damages because of the risk that his heart valve may one day fail. Alabama courts have never allowed a recovery based on a product that, like Farsian's valve, is and has been working properly. Each of our prior cases in which fraud or other intentional conduct was alleged has involved a failure, a malfunction, or an accident that involved the defendant's products and which injured the plaintiff. See Quality Homes Co. v. Sears, Roebuck & Co., 496 So. 2d 1 (Ala.1986); Treadwell Ford, Inc. v. Campbell, 485 So. 2d 312, 313 (Ala.1986), appeal dismissed, 486 U.S. 1028, 108 S. Ct. 2007, 100 L. Ed. 2d 596 (1988).
Under Alabama law, Farsian's fear that his valve could fail in the future is not, without more, a legal injury sufficient to support his claim. Although the facts as presented by the Court of Appeals indicate that the Bjork-Shiley heart valve has experienced problems with strut failures, Farsian's concern that his heart valve, which is presently functioning normally, could later malfunction is not an injury recognized by Alabama law.
Other courts have refused to recognize a cause of action in similar cases when the heart valve has not failed. In Angus v. Shiley Inc., 989 F.2d 142 (3d Cir.1993), the recipient of a heart valve sued Shiley, charging that the manufacturer was liable to her because, the plaintiff Angus said, it had deliberately manufactured the valves notwithstanding its knowledge of a strut fracture problem, had failed to warn her of the problem, had misrepresented the product, and had concealed its knowledge of the problem. Angus further charged that by reason of Shiley's conduct she suffers from severe mental anguish, anxiety, fear, worry, depression and other emotional distress, including the constant fear of sudden death or permanent physical injury. Angus contended that her mental state caused her to experience physical ailments, including sleep disturbances, *408 frequent panic feelings, nervousness with breathing difficulties, headaches, insomnia, mental anxiety, and depression. Angus did not allege that the valve implanted in her was defective. The Court of Appeals for the Third Circuit, applying Pennsylvania law, affirmed the lower court's summary judgment for Shiley, holding that the plaintiff could not recover for alleged mental distress absent proof that the valve was defective and absent any physical injury:
989 F.2d at 147 (citations omitted).
In Brinkman v. Shiley, Inc., 732 F. Supp. 33 (M.D.Pa.), affirmed, 902 F.2d 1558 (3d Cir.1989), the district court dismissed the plaintiffs' claims, which included claims based on negligence and strict liability theories, because the "heart valve has not failed to function properly," 732 F. Supp. at 34, even though the plaintiffs had alleged intentional and/or negligent representations, in addition to other claims.
In Walus v. Pfizer, Inc., 812 F. Supp. 41 (D.N.J.1993), the recipient of a prosthetic heart valve manufactured by Shiley sued the manufacturer and a pharmaceutical company, claiming damages based on negligence, strict liability, failure to warn, fraud, misrepresentation, and negligent and intentional infliction of emotional distress. His wife sued to recover damages for loss of consortium. When the plaintiffs sued, the recipient's valve was working normally. The district court, applying New Jersey law, held that under New Jersey product liability law the couple had no cause of action based on their fear that the valve might fail at some unknown time. As to the plaintiffs' fraud claims, the court held that the plaintiffs "cannot avoid the physical harm requirement by recasting their product liability claims as fraud claims." 812 F. Supp. at 45.
In Spuhl v. Shiley, Inc., 795 S.W.2d 573 (Mo.App.1990), the recipient of a heart valve sued, seeking damages for the infliction of emotional distress he claimed to have sustained as a result of the implantation of two prosthetic heart valves manufactured by Shiley. The plaintiff's heart valve was functioning properly and had not failed, malfunctioned, or caused an accident that injured the plaintiff. The trial court entered a summary judgment in favor of the manufacturer. The Missouri Court of Appeals affirmed, holding that product malfunction or failure is an essential element of a claim based on a negligent failure to warn or seeking the imposition of strict liability based on a failure to warn. 795 S.W.2d at 580-81.
Farsian's heart valve has not failed. Instead, it has been working properly and as intended by its manufacturer, Bjork-Shiley. Although the parties see different theories of this caseFarsian relying upon Alabama fraud law, while Shiley argues in the context of product liability lawwe conclude that the answer to the certified question, whether it is couched in terms of fraud law or in terms of product liability law, must be that Farsian does not now have a cause of action for damages, because the valve has not failed.
For the foregoing reasons, we answer the United States Court of Appeals' question in the negative.
QUESTION ANSWERED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur.
BUTTS, J., dissents.
[1] The other major difference between the two valves is that for the rest of their lives patients in whom Shiley's valve is implanted must take medication to thin their blood, whereas patients with pig valves need not take the medication.
[2] The valve is basically a disc located inside a ring that is sutured to the heart. It opens and closes rhythmically, allowing blood to flow through the heart. The disc is held in place by two wire holders called inflow and outflow struts, located on each side of the disc. The valve failure relevant to this case is caused when the outflow strut fractures. When the strut is fractured, the disc escapes from the ring, causing uncontrolled blood flow through the heart. Death results in approximately two-thirds of strut fracture incidents.
[3] According to a congressional report, the number of reported fractures and resulting deaths "is generally agreed to be greatly understated because the distress signs of patients with common heart seizures and fracture problems are similar and autopsies are not always taken." | August 30, 1996 |
a71ab2a5-2b09-4f5b-abf7-7b3cbdb04c55 | Ex Parte City of Huntsville | 684 So. 2d 123 | 1950938 | Alabama | Alabama Supreme Court | 684 So. 2d 123 (1996)
Ex parte CITY OF HUNTSVILLE.
(Re CITY OF HUNTSVILLE v. BENCHWARMER FOOD & SPIRITS, INC., and Board of Zoning Adjustment of the City of Huntsville; and CITY OF HUNTSVILLE v. Frederick W. DIRRIGLE, Jr., d/b/a The Turning Point Cafe & Spirits, Inc., and Board of Zoning Adjustment of the City of Huntsville).
1950938.
Supreme Court of Alabama.
September 6, 1996.
*124 K. Claudia Anderson and Mary Ena J. Heath, Asst. City Attys., for Petitioner.
George M. Beason, Jr. and Elizabeth A. Beason of Martinson & Beason, P.C., Huntsville, for Respondent Board of Zoning Adjustment of City of Huntsville.
Harvey B. Morris and Maureen K. Cooper of Morris, Cloud & Conchin, P.C., Huntsville, for Respondent Benchwarmer Food & Spirits, Inc.
J. Kenneth Smith, League Counsel, Montgomery, for Amicus Curiae Alabama League of Municipalities, in support of the City of Huntsville.
SHORES, Justice.
This Court granted the petition of the City of Huntsville ("the City") for certiorari review of two cases, decided by the Court of Civil Appeals, to consider only the issue of whether under § 11-52-81, Ala.Code 1975, a municipality has standing as a "party aggrieved" to challenge decisions by the Board of Zoning Adjustment. In those two cases the City's Board of Zoning Adjustment ("Board") had granted variances from the City's zoning ordinance. The City opposed the granting of the variances and challenged the Board's actions in the circuit court, pursuant to § 11-52-81, Ala.Code 1975. The circuit court dismissed the City's complaints, holding that the City did not have standing to seek review in the circuit court of the actions of the Board. The Court of Civil Appeals affirmed the dismissals, without opinion. City of Huntsville v. Benchwarmer Food & Spirits, Inc., 682 So. 2d 513 (Ala.Civ. App.1996) and City of Huntsville v. Dirrigle, 682 So. 2d 514 (Ala.Civ.App.1996) (table). We reverse and remand.
Section 11-52-81, Ala.Code 1975, provides:
Whether a municipality is a "party aggrieved," within the meaning of § 11-52-81, is the issue to be decided. Prior cases have addressed the meaning of "party aggrieved" but have not specifically addressed the precise issue presented here.
For instance, Crowder v. Zoning Bd. of Adjustment, 406 So. 2d 917 (Ala.Civ.App.), cert. denied, 406 So. 2d 919 (Ala.1981), concerned the standing of a third party, not a party to the proceeding before the board of adjustment, to challenge the board's action in court. The Court of Civil Appeals held that a private property owner must present "`proof of the adverse effect the changed status of the rezoned property has, or could have, on the use, enjoyment and value' of his own property." 406 So. 2d at 918 (quoting Cox v. Poer, 45 Ala.App. 295, 229 So. 2d 797 (1969)).
In Cox, the court held that a "party aggrieved" includes a person, whose property is in proximity to the rezoned property, who can prove the current or potential adverse effect the changed status of the rezoned property has on the use, enjoyment, and value of his or her property, regardless of whether that person was a party before the zoning board whose decision is appealed. The court in Cox did not address the issue whether a city is a "party aggrieved" within the meaning of the statute, with standing to appeal a final judgment of a zoning board.
Where appeals by municipalities have been entertained, this Court has not decided the issue whether the municipality had standing to appeal. See City of Mobile v. Lee, 274 Ala. 344, 148 So. 2d 642 (1963) (entertaining appeal by city and refusing to address standing issue because it was not raised below); City of Mobile v. Sorrell, 271 Ala. 468, 124 So. 2d 463 (1960) (allowing appeal by city and pretermitting discussion of its standing because no question of standing was raised on appeal).
*125 The City and an amicus curiae, the Alabama League of Municipalities, assert that a municipality has an interest in assuring that its ordinance is not applied to the detriment of the public and that it must have a corresponding right to appeal decisions of its zoning board that are, in the judgment of the municipal council, detrimental to the public. This interest is evident from the legislation:
§ 11-52-70, Ala.Code 1975. This Court has stated that when it acts under the authority of this section, a city is exercising its police power "for the protection of the public welfare." Jefferson County v. City of Birmingham, 256 Ala. 436, 440, 55 So. 2d 196, 199 (1951). Additionally, the statute provides:
§ 11-52-72, Ala.Code 1975. Furthermore, this Court has recognized that improper decisions by boards of zoning adjustment affect the interests of a municipality. Priest v. Griffin, 284 Ala. 97, 222 So. 2d 353 (1969) (granting variances arbitrarily could destroy whole system of zoning); Marshall v. City of Mobile, 250 Ala. 646, 649, 35 So. 2d 553, 555 (1948) (a municipality's exercise of its zoning authority is "`one of the most essential powers of government,one that is the least limitable,'" quoting Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S. Ct. 143, 145, 60 L. Ed. 348 (1915)). In Priest, this Court stated:
Priest v. Griffin, 284 Ala. 97, 102, 222 So. 2d 353, 357-58 (1969).
The City also asserts that the legislature intended that municipalities be included as "parties aggrieved." The City relies in part on the language of the Standard State Zoning Enabling Act ("Standard Act"), promulgated by the United States Department of Commerce and used as a model for zoning legislation in the majority of the states, as well as in Alabama. See 1 Robert M. Anderson, American Law of Zoning, § 2.21 (4th ed.1996). The Standard Act was adopted in "substance and effect" by the Alabama legislature in 1935. Chapman v. City of Troy, 241 Ala. 637, 639, 4 So. 2d 1, 2-3 (1941) see also Nelson v. Donaldson, 255 Ala. 76, 50 So. 2d 244 (1951). Appeals from the board of zoning adjustment, under the Standard Act, could be taken by the following persons in the manner prescribed:
See Rathkopf's The Law of Planning and Zoning, Appendix A-4 (4th ed.1995). The City argues that § 11-52-81, written with this standard provision as a model, includes municipalities. The City also points out that a municipality affected by a decision of its *126 zoning board can appeal to the Board pursuant to § 11-52-80(c):
The City reasons that once it exhausts this administrative remedy, it should then have standing to seek judicial review as other parties do after appealing to the Board.
The City also refers to the Alabama Administrative Procedure Act, under which a "person" who has exhausted all administrative remedies and who is aggrieved is "entitled to judicial review" of administrative decisions. § 41-22-20(a), Ala.Code 1975. Under that Act, "Person" is defined as "[a]ny individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency." § 41-22-3(7), Ala.Code 1975. Additionally, the City relies on the Airport Zoning Act, under which municipalities have standing to seek judicial review after exhausting administrative remedies:
See § 4-6-11(a), Ala.Code 1975. A municipality is included in the term "political subdivision." See § 4-6-2(4), Ala.Code 1975. The City thus concludes that in § 11-52-81 the legislature intended "parties aggrieved" to be an inclusive term covering municipalities.
The City has also cited cases from other jurisdictions. In holding that the state statute providing a right to appeal zoning decisions to "[a]ll persons jointly or severally aggrieved by any decision of the board of appeals" gave a municipality standing to appeal, the Illinois Appellate Court reasoned:
Reichard v. Zoning Board of Appeals of Park Ridge, 8 Ill.App.3d 374, 379, 290 N.E.2d 349, 353 (1972). The same analysis applies in Alabama. A zoning board acts independently of the municipal council that enacts the ordinances, and board members may be removed only "for cause." § 11-52-80(a), Ala. Code 1975. Additionally, as the amicus points out, the improper granting of variances will not necessarily be challenged by many aggrieved parties because they might not have the resources for the litigation. Without standing to challenge the arbitrary granting of variances, the municipality is unable to prevent the improper application of its ordinances.
A board of zoning adjustment has the power under § 11-52-80(d)(3):
It is well established, however, that the zoning board "`does not have the right to act arbitrarily or to amend or depart from the terms of the ordinance at its uncontrolled will and pleasure.'" Ex parte Chapman, 485 So. 2d 1161, 1164 (Ala.1986) (quoting Nelson v. Donaldson, 255 Ala. 76, 84, 50 So. 2d 244, 251 (1951)). This Court finds persuasive the analysis of the Citythat recognizing a municipality's standing to seek judicial review of the administrative decisions of the zoning board promotes the system of zoning prescribed by the legislature, and this Court *127 holds that a municipality does have standing to challenge decisions of its own board of zoning adjustment.
Accordingly, the judgment of the Court of Civil Appeals is reversed and the caused is remanded.
REVERSED AND REMANDED.
ALMON, HOUSTON, KENNEDY, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
MADDOX, Justice (dissenting).
I disagree with the holding that a municipality can be a "party aggrieved," as that term is used in § 11-52-81, Ala.Code 1975,[1] and thus qualified to challenge decisions by its board of zoning adjustment.
[1] "Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo." § 11-52-81, Ala.Code 1975. | September 6, 1996 |
73c1b8c6-3712-4ba2-a869-1d78558531c0 | Ex Parte CAP | 683 So. 2d 1010 | 1951057, 1951058 | Alabama | Alabama Supreme Court | 683 So. 2d 1010 (1996)
Ex parte C.A.P., W.H.P., and A.C.P.[1] and
Ex parte A.C.P., by and through his guardian ad litem.
(In re J.W.O. v. C.A.P., W.H.P., and A.C.P.).
1951057, 1951058.
Supreme Court of Alabama.
July 19, 1996.
Virginia A. Vinson of Wilkinson & Vinson, Birmingham, for petitioners in 1951057.
Julie Marks, Birmingham, guardian ad litem in 1951058.
David Gespass, Birmingham, for respondent J.W.O.
William Prendergast and Lois Brasfield, Asst. Attys. Gen., Department of Human Resources, for amicus curiae State of Alabama Dept. of Human Resources, in support of petitioners.
HOUSTON, Justice.
In September 1994, J.W.O. filed a declaratory judgment action against C.A.P. ("the mother"), W.H.P. ("the husband"), and A.C.P. ("the child"), seeking a judgment declaring that he was the natural and legal father of the child and requesting that the court grant him visitation and order him to pay child support. In the complaint, J.W.O. alleged that he had cohabited with the mother; *1011 that the child was conceived during the period of cohabitation; that after the relationship between J.W.O. and the mother ended, the mother married W.H.P.; and that the child was born two months later. In December 1994, J.W.O. moved the trial court to order a blood test to determine the biological paternity of the child. In February 1995, the guardian ad litem for the child, joined by the mother and the husband, moved to dismiss on the ground that under the Alabama Uniform Parentage Act, Ala.Code 1975, § 26-17-1 et seq., J.W.O. lacked standing to initiate an action to establish paternity. The trial court granted the motion. In a 3-2 decision, the Court of Civil Appeals reversed the judgment of dismissal and remanded the case for further proceedings, holding that, because the child was not conceived during the marriage, "The policy considerations militating against the arguments of the man claiming to be the father in [Ex parte Presse, 554 So. 2d 406 (Ala.1989)], do not apply to J.W.O." J.W.O. v. C.A.P., 683 So. 2d 1004, 1006 (Ala. Civ.App.1996). The mother, the husband, and the guardian ad litem for the child petitioned for certiorari review, which the Court granted.
The mother, the husband, and the guardian ad litem maintain that pursuant to Ala. Code 1975, § 26-17-5(a)(1), the husband is presumed to be the natural father of the child because he was married to the mother when the child was born. They also assert that in reversing the trial court's holding that J.W.O. lacked standing, the Court of Civil Appeals misinterpreted Presse and put misplaced reliance and too much emphasis on the phrase "`conceived and born during the marriage.'" According to the mother, the husband, and the guardian ad litem, the basis of the holding in Presse was not whether the child was conceived during the marriage, but rather whether public policy considerations allow a man to destroy the legitimate relationship between the child and the presumed fatherthat is, that the time of conception was simply not a factor in the Presse decision, yet the Court of Civil Appeals used this distinction to hold Presse inapplicable to the facts of this case.
J.W.O. contends that because he "openly [held] out" the child as his own, a presumption exists that he is the father of the child.
Section 26-17-5 provides six situations that give rise to a presumption of a father/child relationship. The pertinent provisions of that section are as follows:
A presumption of paternity may be rebutted only by clear and convincing evidence, and when conflicting presumptions arise, "that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control." Ala.Code 1975, § 26-17-5(b).
In Ex parte Presse, 554 So. 2d at 412, the Court held that the "public policy considerations" on which a husband is presumed to be the father of the wife's child are weightier than the other presumptions under § 26-17-5:
Furthermore, the Presse Court held:
554 So. 2d at 418.
The Court in Presse did not base its decision on whether the child was conceived during the marriage, and § 26-17-5(a)(1) does not require that the child be conceived during the marriage to make the husband the presumed father. Rather, all that is required, under either caselaw or statute, is that the child be born during the marriage. The Code uses the word "birth" as the benchmark for establishing presumptions of paternity, not the time of conception. See also Foster v. Whitley, 564 So. 2d 990 (Ala. Civ.App.1990), in which Whitley sought to intervene in a divorce proceeding, claiming to be the father of a minor child of the marriage, and in which the husband, as in this case, never contended that he was not the father of the child. Relying on Ex parte Presse, supra, and discounting the argument that Whitley was the presumed father under § 26-17-5(a)(4) because he openly held the child out as his own, the Court of Civil Appeals in Foster, 564 So. 2d at 991, held that Whitley had no standing to challenge paternity:
See also Leonard v. Leonard, 360 So. 2d 710 (Ala.1978).
Neither the Court in Ex parte Presse, nor the legislature by its enactment of § 26-17-5, intended the result reached in this case by the Court of Civil Appealsthat because the child was not conceived during the mother's marriage J.W.O., an outsider as to the marriage, had standing to attempt to establish his paternity notwithstanding the fact that the husband had not disclaimed, but rather maintained, his parental status. Furthermore, although the Court of Civil Appeals found that J.W.O. had held the child out as his own, there is no evidence in the record to support that finding other than J.W.O.'s allegation that he was the biological father. Thus, J.W.O.'s interest in judicially establishing his alleged biological relationship to the child is outweighed by the obvious objectives of the Alabama Uniform Parentage Act, which are to provide for the psychological stability and general welfare of the child and to afford legitimacy to children whenever possible.
A man not presumed to be the father, but alleging himself to be the father, may institute an action to have himself declared the father only when the child has no presumed father. § 26-17-6(c). That is not the case here.
We reverse the judgment of the Court of Civil Appeals and remand the case for proceedings consistent with this opinion.
1951057 REVERSED AND REMANDED.
1951058 REVERSED AND REMANDED.
HOOPER, C.J., and SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
MADDOX and ALMON, JJ., dissent.
MADDOX, Justice (dissenting.)
I must respectfully dissent because I believe J.W.O. has the requisite standing to institute this paternity action. See, Ex parte Presse, 554 So. 2d 406, 419 (Ala.1989) (Maddox, J., dissenting).
[1] In their brief to this Court, the petitioners point out that in their application for rehearing in the Court of Civil Appeals they asked that court to acknowledge that C.A.P.'s correct initials are C.H.P. and that W.H.P.'s correct initials are W.L.P. However, nothing in the record verifies that assertion. Their petition was filed under the initials C.A.P. and W.H.P. | July 19, 1996 |
6df85a09-221a-4cbb-b9ca-09e3e25145bb | SYSTEM DYNAMICS INTERN., INC. v. Boykin | 683 So. 2d 419 | 1950522 | Alabama | Alabama Supreme Court | 683 So. 2d 419 (1996)
SYSTEM DYNAMICS INTERNATIONAL, INC.
v.
William H. BOYKIN, Jr.
1950522.
Supreme Court of Alabama.
October 18, 1996.
Don A. Howard, Huntsville, for Appellant.
Julian D. Butler of Sirote & Permutt, P.C., Huntsville, for Appellee.
KENNEDY, Justice.
System Dynamics International, Inc. ("SDI"), sued Dr. William H. Boykin, Jr., alleging that Boykin had breached his fiduciary duty as a shareholder, director, and chief executive officer of SDI. SDI sought from Boykin reimbursement of funds that SDI had paid to the Internal Revenue Service pursuant to an audit and a subsequent tax assessment. The assessment was a result of certain payments Boykin had had SDI make to Boykin as CEO of SDI. The IRS disallowed a portion of the payments as business deductions and assessed SDI accordingly.
Boykin asserted the statute of limitations as a defense against SDI's claim of a breach of fiduciary duty, arguing that SDI had filed its complaint more than two years after the accrual of the cause of action. The applicable limitations period for a claim alleging breach of fiduciary duty by a corporate officer and director is two years, pursuant to Ala.Code 1975, § 6-2-38. The trial court granted Boykin's motion for a summary judgment, on the grounds that the statute of limitations barred the claim.
To enter a summary judgment, the trial court must determine (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Berner v. Caldwell, 543 So. 2d 686 *420 (Ala.1989). The standard of review applicable to a summary judgment is the same as the standard for granting the summary judgment motion: we must determine whether there is a genuine issue as to any material fact and, if not, whether the movant was entitled to a judgment as a matter of law. This Court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
SDI argues that its cause of action had accrued no more than two years before it filed its complaint and, therefore, that its action is not barred by the two-year statute of limitations.
SDI was notified by the IRS on July 23, 1992, that the IRS was disallowing as business deductions a portion of the payments Boykin had caused SDI to make to him in previous years. The IRS assessed SDI for back taxes and penalties. From this point, SDI protested the IRS tax assessment, which was eventually settled for a lesser amount on August 13, 1993. The payments SDI had made to Boykin were made during the tax years ending June 30, 1989, 1990, and 1991. Thus, all the payments in dispute were made on or before June 30, 1991. SDI filed its complaint on May 5, 1994.
Boykin argues that SDI's cause of action for breach of fiduciary duty accrued when SDI made the payments to him, i.e., on or before June 30, 1991. Boykin argues that the legal injury suffered by SDI was the loss of SDI's funds when they were paid to Boykin. Boykin argues that at that time SDI could have sued Boykin for breach of fiduciary duty. Boykin says the tax assessment paid by SDI was merely the payment of taxes that had been due for 1989, 1990, and 1991taxes that had not been paid because of the claimed deduction for the payments to Boykin.
Boykin cites Jackson v. Secor Bank, 646 So. 2d 1377 (Ala.1994), in support of his argument that SDI's cause of action accrued on or before June 30, 1991. In that case, Jackson's action against Secor was held to have accrued when he suffered damage. Jackson had in 1987 deposited money with Secor in what he believed to be a tax-deferred account. At the end of 1987, Secor sent him a Form 1099 indicating that it would report to the IRS the interest earned on the account. Jackson met with his accountant, discovered that his money was not in a tax-deferred account, moved his money into a tax-deferred account, filed his 1987 tax return without reporting the earned interest, and listed the Secor account as a tax-deferred account on his 1987 tax return. This Court held that Jackson had suffered damage and that his cause of action had accrued when he filed his 1987 tax return even though he was not assessed taxes by the IRS until 1990. Id.
This Court held in Jackson: "The trial judge properly concluded that Jackson incurred an injury or damage'a liability of admittedly, an unknown amount, but it was a liability which is a damage'more than two years before he filed his complaint. Jackson clearly suffered damage when he filed his 1987 federal income tax return on April 14, 1988." 646 So. 2d at 1379.
The dispositive issue presented in the present case is when SDI's cause of action against Boykin accrued and when the applicable statutory limitations period began to run.
Jackson is distinguishable from the present case by the fact that when Jackson received the Form 1099 interest statement from Secor and was told by his CPA that the money was not in a tax-deferred account, Jackson knew he had incurred damage in 1987. In the present case, SDI did not know it would be assessed taxes and penalties for the payments made to Boykin until, at the earliest, July 23, 1992, when notification was given by the IRS. It was not clear when SDI made the payments to Boykin during the tax years 1989, 1990, and 1991 that SDI had suffered damage; therefore, the cause of action for breach of fiduciary duty had not then accrued. The act of paying money to Boykin as CEO of SDI did not result in injury or damage to SDI until the assessment by the IRS on July 23, 1992. It was at this time that SDI's cause of action accrued and the two-year limitations period began to run.
*421 A cause of action accrues when the party in whose favor it arises is entitled to maintain an action. McWilliams v. Union Pacific Resources Co., 569 So. 2d 702 (Ala. 1990). The period allowed by the statute of limitations is to run from the date of the accrual of a cause of action, not from the date of the occurrence of the act that provides the basis for the cause of action. Jones v. Blanton, 644 So. 2d 882, 887 (Ala.1994), citing Michael v. Beasley, 583 So. 2d 245 (Ala.1991).
In Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979), this Court held: "If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed...." 368 So. 2d at 519 (quoting earlier cases). This Court had applied the reasoning used in Garrett to hold that in situations where the act itself is not a legal injury, not a completed wrong, and the plaintiff's injury comes only as a result of what the defendant has done, the cause of action accrues and the limitations period begins to run when damage is sustained. See West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925); Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973). There was no "completed wrong" until the IRS assessed SDI for the taxes and penalties. SDI did not know if the IRS would allow the payments to Boykin as business deductions, would disallow a portion of the payments, or would disallow all of the payments. At best there existed potential tax liability and consequences when the payments were made to Boykin. As stated above, in the end the IRS disallowed only a portion of the payments.
We also note that SDI and Boykin entered into an agreement on May 18, 1992, whereby SDI released Boykin from all liability to SDI except for any tax liability SDI might incur in the future to the IRS in regard to the money that had been paid to Boykin. As stated previously, before July 23, 1992, SDI had no notice that the IRS would assess taxes and penalties. We conclude that SDI filed its claim within the time allowed for the commencement of an action for breach of fiduciary duty. Therefore, the summary judgment in favor of Boykin is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES and COOK, JJ., concur.
BUTTS, J., concurs in the result.
MADDOX, J., dissents. | October 18, 1996 |
c40a2aae-4334-4b99-bb5a-580e2a433066 | Ex Parte Tegner | 682 So. 2d 396 | 1950460 | Alabama | Alabama Supreme Court | 682 So. 2d 396 (1996)
Ex parte Robert TEGNER.
(Re State of Alabama v. Robert Tegner).
1950460.
Supreme Court of Alabama.
August 2, 1996.
*397 Richard E. Sandefer of Sandefer & Associates, P.C., Pinson, for petitioner.
Jeff Sessions, Atty. Gen., James B. Prude, Asst. Atty. Gen., and Stephen Mark Dukes, Decatur, for respondent.
Joseph P. Van Heest of Glassroth & Associates, P.C., Montgomery, for amicus curiae Alabama Criminal Defense Lawyers Association in support of petitioner.
KENNEDY, Justice.
Robert Tegner, who has been charged with murder, seeks a writ of mandamus directing the Morgan Circuit Court to revoke an order granting the state's motion to remove Tegner's attorney from representing him at trial.
We are mindful that the writ of mandamus is a drastic and extraordinary remedy. Ex parte Johnson Land Co., 561 So. 2d 506 (Ala.1990). It will not issue absent a clear abuse of discretion by the trial court. Ex parte Mid-Continent Systems, Inc., 447 So. 2d 717 (Ala.1984).
This petition arises from the following facts:
John Mitchell is purportedly an eyewitness to the murder Tegner is charged with. It is anticipated that Mitchell will be the State's key witness against Tegner.
John Mays was appointed to represent Tegner at trial. Mays had previously represented Mitchell, the purported eyewitness, in another matter. The State moved to remove Mays as Tegner's attorney, averring that Mays has a potential conflict of interest in the case, within the meaning of Rule 1.9, Alabama Rules of Professional Conduct, based on the fact that he had previously represented Mitchell and may have obtained confidential information about Mitchell during the course of representing him. The State also averred that Mitchell had not waived any objection to this potential conflict. After hearing oral arguments on the motion, the trial court directed the State to seek an ethics opinion from the Alabama State Bar. The State Bar spoke with the attorneys involved in Tegner's case to develop a factual background; it then issued an opinion concluding that Mays had "a conflict of interest that disqualifies him." After that opinion was provided to the trial court, the court granted the State's motion to remove Mays, on the basis that "[i]t is the opinion of [the Alabama State Bar Disciplinary] Commission that John Mays has a conflict of interest that disqualifies him from representing Robert Tegner."
Tegner sought a writ of mandamus from the Court of Criminal Appeals. That court denied the writ. Ex parte Tegner, 675 So. 2d 514 (Ala.Crim.App.1995). Tegner then petitioned this Court for the writ, pursuant to Ala.R.App.P. 21(e). We grant his petition and issue the writ.
In United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994), the United States Court of Appeals for the Eleventh Circuit ably discussed constitutional concerns and matters a court must examine when considering a motion by the State to remove defense counsel:
The trial court, in considering the State's motion, should have evaluated evidence regarding the question of disqualification, weighed the constitutional rights in issue, and determined whether the first representation was substantially related to the second. It did not do so; because it had to do so before it could properly disqualify Tegner's counsel, we grant Tegner's petition. The Morgan Circuit Court is directed to set aside its order granting the State's motion to remove Mays from Tegner's case.
WRIT GRANTED.
ALMON, SHORES, COOK, and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
HOOPER, C.J., and MADDOX, J., dissent.
HOUSTON, Justice (concurring specially).
Robert Tegner has waived any error that may result from his attorney's having represented the State's material witness in another criminal matter. Therefore, I cannot hold that Tegner cannot be represented by his attorney of choice. I think the attorney has placed himself between a rock and a hard place in light of the ethics opinion from the Alabama State Bar and the prospect of cross-examining his former client in an attempt to discredit him. However, if Tegner should be convicted, he has waived his right to seek reversal on the grounds that Mays, in cross-examining this material witness for the State, provided Tegner inadequate or ineffective representation because of this potential conflict of interest.
HOOPER, Chief Justice (dissenting).
The writ of mandamus should be denied. John Mays was appointed to represent Robert Tegner in this criminal prosecution. Mays has previously represented John Mitchell in a criminal case. Mitchell is purportedly an eyewitness to the murder Tegner is charged with, and it is anticipated that he will be the State's key witness against Tegner.
The trial court held a hearing and found that Mays had a potential conflict of interest in Tegner's case, within the meaning of Rule 1.9, Alabama Rules of Professional Conduct, based on his having previously represented Mitchell. Mays obtained confidential information about Mitchell during the course of representing him. Mitchell has not waived any objection to this potential conflict.
In United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994), the United States Court of Appeals for the Eleventh Circuit held that "[i]n deciding whether the actual or potential conflict warrants disqualification, we examine whether the subject matter of the first representation is substantially related to that of the second." Mays's representation of the State's key witness in the earlier criminal case is substantially related to his representation in Tegner's criminal case. In representing Mitchell, Mays would have learned confidential information about Mitchell that Mays could now use against Mitchell in order to aid in Tegner's defense. Even if Mays did not use any of this confidential information against Mitchell, any attempt by Mays to impeach Mitchell would have the appearance of violating Mitchell's confidentiality. Even if the confidential information is not the direct subject of the impeachment, the confidential information may have aided Mays in obtaining the impeachment information.
The trial judge properly removed John Mays from representing Robert Tegner in this case. Tegner has not shown a clear legal right to the writ of mandamus. I would deny his petition.
MADDOX, J., concurs. | August 2, 1996 |
79065486-bcc0-4f62-8d71-bf19e342ee02 | Ex Parte Finkbohner | 682 So. 2d 409 | 1951363 | Alabama | Alabama Supreme Court | 682 So. 2d 409 (1996)
Ex parte George W. FINKBOHNER III and Sandra Finkbohner.
(In re George W. FINKBOHNER III and Sandra Finkbohner v. PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, et al.).
1951363.
Supreme Court of Alabama.
September 6, 1996.
*410 C.S. Chiepalich and John R. Spencer of C.S. Chiepalich, P.C., Mobile, for Petitioners.
Lynn Etheridge Hare and Stephanie R. White of Hare, Hair & White, P.C., Birmingham, for Respondent.
HOUSTON, Justice.
The plaintiffs George W. Finkbohner III and Sandra Finkbohner petition this Court for a writ of mandamus directing the trial court to compel the defendant Principal Mutual Life Insurance Company ("Principal Mutual") to comply with a discovery request. The petition is granted in part and denied in part.
Sandra Finkbohner underwent a surgical procedure to repair a ventral hernia. It appears from the evidence presented that this procedure was determined by Ms. Finkbohner's personal physicians and her medical insurer, Principal Mutual, to be medically necessary to correct an abdominal problem that had arisen a few months before, during Ms. Finkbohner's pregnancy. It also appears that Ms. Finkbohner's physicians submitted a request for a "presurgery review" to Principal Mutual, specifically referencing a procedure assigned code number 49560the procedure to repair the hernia. Principal Mutual later paid all of the expenses associated with this procedure. At the same time they repaired Ms. Finkbohner's hernia, however, her physicians also performed an abdominoplasty, or, as it is commonly referred to, a "tummy tuck." Ms. Finkbohner's physicians had apparently not mentioned this procedure in their request for the presurgery review, and Principal Mutual had not authorized payment for it. Upon receiving a bill for both procedures (one coded 49560 and the other coded 15831), and after consulting a cosmetic surgeon, Principal Mutual denied the Finkbohners' claim for expenses associated with the abdominoplasty on the ground that such a procedure constituted "cosmetic surgery," which is defined in the Finkbohners' policy as follows:
(Emphasis added.)
The Finkbohners sued Principal Mutual, alleging breach of contract and bad faith denial of an insurance claim. Principal Mutual denied liability, based on the wording of its policy. The Finkbohners' bad faith claim is based in part on Principal Mutual's negative response to the following interrogatory:
The Finkbohners also rely on the certificate of insurance that was provided to them by Principal Mutual. This certificate, which summarizes the coverage provided under the policy, contains a different definition of "cosmetic surgery" than that contained in the policy. The certificate states:
(Emphasis added.) The Finkbohners' bad faith claim, as we understand it, can basically be summarized as follows: Although it may have had a legitimate reason (based on the cosmetic surgeon's opinion) for concluding that the abdominoplasty was "not needed to correct or improve a bodily function," Principal Mutual is nonetheless liable for bad faith failure to pay the claim 1) because it is estopped to rely on the definition of "cosmetic surgery" contained in the policy (on the ground that it is different from the definition contained in the certificate) and 2) because it has admitted (and, presumably, knew all along) that the surgery was not performed primarily for psychological purposes. According to the Finkbohners, Principal Mutual knew when it denied the claim that it could not satisfy the definition of "cosmetic surgery" contained in the certificate, which requires that the surgery be performed primarily for psychological purposes and that it not be needed to correct or improve a bodily function.
The following interrogatories and requests for production, which were objected to by Principal Mutual on the grounds that they were overly broad, unduly burdensome, and not likely to lead to the discovery of relevant information, form the basis for the Finkbohners' petition:
In Rowland, a fraud and breach of contract action arising out of the purchase of an automobile, the plaintiff purchaser petitioned for a writ of mandamus directing the trial court to permit him to discover any fraud actions that had been filed against the defendant dealer in the previous 10 years. Because the plaintiff's fraud claim was based on allegations that the defendant had misrepresented the size of the automobile's engine, the trial court had permitted discovery of only those previous fraud actions that may have been based on allegations of misrepresentations of engine size. The plaintiff argued that such a restriction was at odds with his broad right of discovery in a fraud action and that the trial court had abused its discretion. We agreed and granted the writ, stating:
669 So. 2d at 127-28.
Unlike Rowland, the present action is not based on allegations of fraud. However, like the fraud claim in Rowland, intent is an element of the Finkbohners' bad faith claim. See Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990). For this reason, and because bad faith, like fraud, is particularly difficult to prove, Thomas, at 742-43, any bad faith actions filed against Principal Mutual since 1992 would be discoverable under the rationale of Rowland. Therefore, based on Rowland, we conclude that the trial court abused its discretion in denying the Finkbohners' motion to compel discovery of any previous bad faith actions filed against Principal Mutual.
We note, however, that the Finkbohners seek to discover not only previous bad faith actions filed against Principal Mutual, but also all "bad faith claims" that have not resulted in the filing of an action. The Finkbohners' discovery request does not define or delineate exactly what constitutes a "bad faith claim." The term "bad faith" is a legal term corresponding to certain wrongful conduct on the part of an insurer in denying a claim for benefits. For this reason, we conclude that it would be unduly burdensome on Principal Mutual for it to have to sift through possibly hundreds, if not thousands, of letters or other items of correspondence complaining of or challenging its denial of particular claims and to have to decide whether any one of the complainants was charging it with a "bad faith" denial of the claim. We also question how many complaints or "claims" not resulting in legal action would be "reasonably calculated to lead to the discovery of admissible evidence." Rule 26(b)(1), Ala. R.Civ.P. For these reasons, we conclude that the trial court did not abuse its discretion in denying the Finkbohners' motion to compel the discovery of previous "bad faith claims."
With respect to their second discovery request (for information concerning all claims for benefits filed in Alabama over the past five years that were denied on the ground that they were related to procedures *414 deemed cosmetic in nature), the Finkbohners argue as follows:
The Finkbohners apparently seek to buttress their bad faith claim by presenting the testimony of other claimants who had claims denied based on the definition of "cosmetic surgery" contained in the policy. As we understand the Finkbohners' position, the information they seek would be relevant only if the definition of "cosmetic surgery" contained in their certificate of insurance, and not the one set out in the policy, controlled and if Principal Mutual's reliance on its policy language could form the basis for a bad faith claim, as opposed to a claim for breach of contract. In this regard, the policy provides:
Citing Ala.Code 1975, § 27-14-19, and Brown Machine Works & Supply Co. v. Insurance Co. of North America, 659 So. 2d 51 (Ala.1995), the Finkbohners contend that Principal Mutual is estopped from denying coverage under the policy by virtue of the discrepancy between the definition of "cosmetic surgery" contained in the policy and the one contained in the certificate. According to the Finkbohners, they can base a bad faith claim on this estoppel theory. Although we stated in Brown, at 58, that "when an insurer has not complied with § 27-14-19 and its failure to comply has prejudiced the insured, the insurer may be estopped from asserting an otherwise valid coverage exclusion," we did not address whether a bad faith claim could be maintained against an insurer that relied on the language of its policy, as opposed to conflicting language contained in a certificate provided to the insured. In the absence of fraud, the existence of an otherwise valid coverage exclusion in a policy would arguably provide the insurer with a legitimate or debatable reason for denying a claim. However, the Finkbohners do not allege fraud and the trial court has not ruled on this question. In fact, we are not even certain that this estoppel argument has even been made to the trial court. With the case in this posture, and without the benefit of having this issue fully briefed, we are not inclined to say that the information sought by the Finkbohners is relevant to their bad faith claim; therefore, we cannot hold that the trial court abused its discretion in denying their motion to compel its disclosure.
PETITION GRANTED IN PART AND DENIED IN PART.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, and COOK, JJ., concur.
INGRAM and BUTTS, JJ., concur in part and dissent in part.
BUTTS, Justice (concurring in part and dissenting in part).
I agree with the majority that the trial court correctly denied the Finkbohners' motion to compel the disclosure of all bad faith "claims," which the plaintiffs describe merely as claims not involving legal action, made against the defendants since 1992. Likewise, I agree that the trial court erred in denying the Finkbohners' motion to compel discovery of any bad faith actions failed against the insurer since 1992. I must, however, dissent from the majority's holding that the trial court correctly denied the plaintiffs' motion to compel discovery of all claims for benefits denied over the past five years on the ground that they were related to procedures that were "cosmetic" in nature and were thus excluded under the policy.
As the majority states, the Court has not previously addressed whether a bad faith claim may be maintained against an insurer that relied on the language of a policy that it drafted, as opposed to conflicting language *415 contained in a certificate of insurance that it also drafted and provided to the insured. The plaintiffs expect to litigate that issue at trial, and I believe the discovery they seek as to other claims for benefits that the insurer has denied because the procedure was cosmetic is relevant to this issue, and that it would not be unduly burdensome for the insurer to provide. I would therefore direct trial court to vacate its denial of the Finkbohners' motion to compel this discovery.
INGRAM, J., concurs. | September 6, 1996 |
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